On Wednesday, November 2, 2022, the American Bar Association issued Formal Opinion 503, which addresses a lawyer’s ability to communicate with represented individuals in a group email or text. The ABA Model Rule of Professional Conduct 4.2 states that a lawyer may not communicate with an individual who is represented, absent consent of that individual’s lawyer or authorization by the law or court. Formal Opinion 503 states that an attorney who copies her client on an email to opposing counsel provides implied consent for her client to receive communication from opposing counsel. In discussing the Opinion, the ABA stated, “the sending lawyer has chosen to give receiving counsel the impression that replying to all copied on the email or text is permissible and perhaps even encouraged.” An attorney is therefore welcome to “reply all” to the group, despite the fact that they are communicating directly with a represented individual.
The ABA places the burden on the lawyer sending the original email to determine whether to include her client, rather than making the replying lawyer guess whether consent was actually provided. If the lawyer sending an email does not want opposing counsel communicating with her client, she should forward the message to her client after it is sent, and not include them on the chain. To avoid providing implied consent in this situation, a lawyer should specifically communicate that consent has not been provided in a clear and prominent fashion, or in a separate communication. The ABA also clarified that implied consent does not apply to non-electronic communication, such as paper letters.
The full text of ABA Formal Opinion 503 is as follows:
“Reply All” in Electronic Communications
In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s “reply all” to the communication. Thus, unless that result is intended, lawyers should not copy their clients on electronic communications to such counsel; instead, lawyers should separately forward these communications to their clients. Alternatively, lawyers may communicate in advance to receiving counsel that they do not consent to receiving counsel replying all, which would override the presumption of implied consent.
Jennifer L. Smith is a partner in the Litigation Practice Group. In her two decades of representing clients in state and federal courtrooms, she has been engaged to litigate a wide range of disputes ranging from complex commercial litigation to aviation accidents. Her representation has included the defense of class actions and parties in multidistrict (MDL) toxic tort litigation.