Member Article

The American Bar Association (ABA) has issued its second formal opinion concerning Model Rule 4.2 in as many months. The so-called “no-contact rule” prohibits a lawyer from having contact with a represented party about the subject of the representation. The Rule does not, however, account for the “reply all” function in email communications. With the advent of email, an unsuspecting, inattentive, or unseasoned lawyer could “communicate” with a represented party, whose lawyer had copied them on an email, with a few errant key strokes. 

Oregon and Washington have each provided on this issue in this past. The Washington Committee on Professional Ethics published Advisory Opinion 202201 earlier this year, which advises that “reply all” may not violate Rule 4.2 if consent can be implied from the situation but, otherwise, express consent is always the most prudent approach. In Washington, consent can be implied from prior course of conduct, the adversarial nature of the matter, formality of communications, the extent to which a communication might interfere with the client-lawyer relationship, etc.

Oregon, on the other hand, takes a stricter approach. The Oregon State Bar takes the position that Oregon has no “reply all” exception and has publicly reprimanded lawyers who negligently reply all to emails. See 74-DEC Or. St. B. Bull. 9; In re Trigsted, 32 DB Rptr 208 (2018). Although the Oregon Supreme Court has not weighed in on this issue, it has found that a lawyer violates Rule 4.2 even if the lawyer is unaware of the rule (In re Venn, 235 Or 73 (1963)). Acting carelessly or impulsively is no excuse. See In re McCaffrey, 275 Or 23 (1976) (“the accused was careless in making the direct communication”); In re Lewelling, 296 Or 702 (1984) (acted on “sudden impulse” while “emotionally upset”). Rule 4.2 is violated even if no harm results from the direct communication. In re Hedrick, 312 Or 442 (1991).  

In November, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 503, taking a more lawyer-friendly approach than both Washington and Oregon. The Opinion provides:

“[G]iven the nature of the lawyer-initiated group electronic communication, a sending lawyer impliedly consents to receiving counsel’s ‘reply all’ response that includes the sending lawyer’s client, subject to certain exceptions below. Several reasons support this conclusion, and we think that this interpretation will provide a brighter and fairer line for lawyers who send and receive group emails or text messages.”

The Opinion cites the following reasons for the foregoing conclusion:

• The “reply all” function “is not [a situation] in which the receiving counsel is overreaching or attempting to pry into confidential lawyer-client communications”;
• “[T]he inclusive nature and norms of the group electronic communications at issue”;
• “[P]lacing the burden on the initiator—the sending lawyer—is the fairest and most efficient allocation of any burdens;” and
• “If the sending lawyer would like to avoid implying consent when copying the client on the electronic communication, the sending lawyer should separately forward the email or text to the client.”

Opinion 503 concludes that although the onus is properly placed on the sending lawyer who chooses to include a client, the presumption of implied consent is not absolute. For instance, a lawyer who copied a client may expressly disclaim consent to communicate with the client via “reply all.” The Opinion also excludes other forms of communication, such as traditional printed paper, because such communications currently involve a separate set of norms (i.e., “[t]here is no prevailing custom indicating by copying a client on a traditional paper letter, the sending lawyer has impliedly consented to the receiving counsel sending a copy of the responsive letter to the sending lawyer’s client”). Of course, the better approach for all is simply to avoid the situation entirely, by separately forwarding emails or texts to the client (which is an approach the ABA endorses). This is preferable in Washington as well, and is best practice in Oregon where the interpretation of the Rule is strictest.

In summary, Opinion 503 does not give Oregon and Washington lawyers carte blanche to “reply all” on emails that include an opposing party, given the pre-existing guidance and authority on this issue. However, Washington lawyers likely have more latitude, and time will tell whether Opinion 503 will relax the application of Rule 4.2 in Oregon.   

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.

 

Link to article