By Charles Berwanger
All of us have most probably received email communications from opposing counsel in a matter in which counsel’s client is shown as a “cc.” You have been waiting for the opportunity to at long last communicate with the client. You fear that opposing counsel has not communicated your settlement offer to the client and now may be the opportunity to communicate that offer by hitting the “reply all” tab. The settlement proposal is relevant to the substance of the email. However, you are concerned that such a communication may violate Rule of Professional Conduct 4.2 which proscribes communicating with a represented party without the consent of opposing counsel.
The first step in the analysis is to review Rule 4.2. Subsection “a” provides that “in representing a client, a lawyer shall not communicate directly or indirectly about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless lawyer has the consent of the other lawyer.”
The issue then is has the sending attorney consented impliedly by including her client as a “cc?”
If you have read the American Bar Association Standing Committee on Ethics and Professional Responsibility Formal Opinion 503 dated November 2, 2022, you may think the answer is within that opinion. After all ABA ethical opinions are treated as authority on ethical issues which have not yet been settled in California. The ABA opinion concludes that “in the absence of special circumstances, lawyers who copy their clients on electric communication sent to counsel representing another person in the matter impliedly consents to receiving counsel’s ‘reply all’ to the communication.” The ABA opinion concludes that this implied consent has limitations including the receiving lawyer’s response must be to the specific topics addressed in the email, and not on unrelated topics.
That ABA opinion may be relied upon unless it is consistent with a 2011 State Bar Committee on Professional Responsibility and Conduct (COPRAC) opinion, which does not give blanket approval to responding to such an email communication but rather concludes that consent may be implied only after analyzing various facts and circumstances surrounding the communication with the represented person.
Cal State Bar Formal Opn. 2011 – 181 sets forth nine factors to be considered before the receiving attorney may hit the reply all button with a responding message that the sending attorney’s client will see. Those factors include (1) whether the communication is within the presence of the represented person’s attorney; (2) prior course of conduct between counsel; (3) the nature of the matter; (4) how the communication is initiated and by whom; (5) the extent to which the communication might interfere with the attorney-client relationship; and several other factors not relevant to the decision as to whether or not to hit the reply all button.
The COPRAC opinion explains that no single factor is determinative; examination of all facts and circumstances regarding communicating with the represented is required; and, thus, determining whether not there has been “implied” consent is a much more complex process than the ABA opinion concludes in California.
Important, too, is the fact that COPRAC opinions that conflict with an ABA opinion interpreting the ABA model rules, upon which rule 4.2 is based, control. (See City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 852.)
In sum, any delight the receiving attorney may have had in receiving an email which appears to open the ethical door to receiving counsel communicating a settlement agreement to the opposing party based on the ABA opinion is unfounded. Whether or not receiving counsel may ethically reply as she desires requires an analysis of the COPRAC factors which on their face suggest the answer is “no.”