We all know that hitting the “Reply all” button in an email can sometimes have embarrassing consequences.
It might also imply consent – even if that’s not what you intend, according to a recent ABA ethics opinion.
“Lawyers who copy their clients on emails and other forms of electronic communications when messaging a lawyer representing someone in the same matter have given implied consent to receiving a ‘reply all’ response back from the recipient counsel, absent special circumstances,” says Formal Opinion 503, issued November 2 by the ABA Standing Committee on Ethics and Professional Responsibility.
ABA Formal Opinion 503 warns lawyers against copying their clients on emails to opposing counsel, unless the intended result is a “reply all” response. The better practice: forward messages separately to clients to avoid this presumption.
Rule of Professional Conduct 4.2 prohibits an attorney from communicating about the subject of the representation with a represented party without the consent of that party’s attorney. But consent can be implied and need not be express, according to Formal Opinion 503.
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NC Rule of Professional Conduct 4.2
Communication With Person Represented by Counsel
(a) During the representation of a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. It is not a violation of this rule for a lawyer to encourage his or her client to discuss the subject of the representation with the opposing party in a good-faith attempt to resolve the controversy.
(b) Notwithstanding section (a) above, in representing a client who has a dispute with a government agency or body, a lawyer may communicate about the subject of the representation with the elected officials who have authority over such government agency or body even if the lawyer knows that the government agency or body is represented by another lawyer in the matter, but such communications may only occur under the following circumstances:
(1) in writing, if a copy of the writing is promptly delivered to opposing counsel;
(2) orally, upon adequate notice to opposing counsel; or
(3) in the course of official proceedings.
Comment  This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation.
Comment  This Rule does not prohibit a lawyer who does not have a client relative to a particular matter from consulting with a person or entity who, though represented concerning the matter, seeks another opinion as to his or her legal situation. A lawyer from whom such an opinion is sought should, but is not required to, inform the first lawyer of his or her participation and advice.
Source: NC State Bar Rule 4.2
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