The Ethics of “Reply All”
Should I click “Reply All”? Did I accidentally click “Reply All”? These thoughts have run through almost every person’s head when responding to an email that contained numerous other individuals besides the sender. The Reply All option on emails has always been a source of questions surrounding work-place etiquette and embarrassment. On top of that, lawyers should think about one more thing before selecting Reply All: ethics.
A recent opinion by the New Jersey Advisory Committee on Professional Ethics considered the implications of an attorney clicking Reply All on an email to adverse counsel when the adverse counsel’s client was also on the email.
The issue was brought to the Committee by an attorney who stated that he copies his client on emails to opposing attorneys, and that opposing attorneys often respond by selecting Reply All and include his client on those responses. The attorney queried the Committee as to whether this type of response violated N.J. Rule of Professional Conduct 4.2, which prohibits an attorney from communicating directly with an individual represented by counsel.
The Committee disagreed that using Reply All in this setting amounted to a violation of the Rules of Professional Conduct. In so doing, the Committee relied on the fact that email is “an informal mode of communication” that often have a “conversational element with frequent back-and-forth responses.” The email conversation in this situation is primarily between the two attorneys and the clients are “mere bystanders.”
A lawyer who includes his client on the initial email to opposing counsel cannot have a “one way street” wherein opposing counsel cannot respond and include his client. The Committee found that attorneys who send an initial email to opposing counsel including their client “have impliedly consented” to having the adverse counsel Reply All to the group, including the first attorney’s client.
Other states, however, take a different approach. For example, Illinois, Alaska, South Carolina, and Kentucky, as the Committee noted, have rejected the approach that the attorney’s initial email acts as implied consent for the opposing counsel to respond to his client. In those states, an attorney who replies all to the group may be in violation of those states’ rules prohibiting communication with a represented individual.
In the end, the New Jersey Committee stressed that: “‘Reply All’ in a group email should not be an ethics trap for the unwary or a ‘gotcha’ moment for opposing counsel.” It is thus incumbent on the sending attorney to not include his client if he does not want opposing counsel to include his client in reply. That makes one less thing (at least for New Jersey attorneys) to worry about before clicking Reply All in response to an email.