by David Hricik, Mercer Law School
Giving a talk in Austin and thought I’d share a couple of interesting results I’ll be speaking about later today. Rule 4.2 in most states prohibits, without consent of opposing counsel, communications about a matter with a person represented by counsel in that matter. (This applies even if opposing counsel is present, as discussed below.).
In Panora v. Deenora Corp, 2021 WL 5712119 (E.D.N.Y. Dec. 2, 2021), the defense counsel doubted plaintiff’s counsel was forwarding settlement offers to the plaintiff, and so he advised his client to send the offer directly to the plaintiff, which he did. That, said the court, was unethical:
“Although a client can decide on its own whether to directly contact his adversary, a lawyer cannot advise a client to contact his adversary, or do anything that the attorney could not do directly. See ABA Formal Opinion 11-461. It is of course improper for a lawyer to contact a represented adversary, and thus since he can’t do it himself, he can’t put up his client to do it for him either.”
In North Carolina Legal Eth. Op. 2012-7 (Oct. 25, 2013), the bar association was asked whether counsel consents to direct contact by cc-ing his client on an email to opposing counsel. The conclusion? Maybe:
“The fact that Lawyer B copies her own client…, standing alone, does not permit Lawyer A to ‘reply all.’ While Rule 4.2(a) does not specifically provide that the consent of the other lawyer must be ‘expressly’ given, the prudent practice is to obtain express consent. Whether consent may be ‘implied’ by the circumstances requires an evaluation of all of the facts and circumstances surrounding the representation, the legal issues involved, and the prior communications between the lawyers and their clients.”
On point:
link to abajournal.com
Hmm,
Hitting “reply all” would seem to be “pragmatically” excusable — given that there is a known option of copying a client with a “bcc” that easily prevents ANY “inadvertent” reply.
Putting the onus on the opposite side appears to NOT be proper when an easy technical solution is within the grasp of the sender.
It’s probably safer to just send the email and then separately forward it to the client so the client doesn’t run the risk of replying all to a bcc’d email, discussing something that would be privileged, but running the risk of losing the privilege because they included the other party’s counsel. Generally bcc should only be used when the reply all only goes to safe emails but you want the recipients to not reply all to each other and not know who each other are.
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