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ABA formal opinion on hitting email ‘reply all’

Technology for Lawyers

Published: January 6, 2023

There are numerous stories of attorneys sending emails to the wrong people and thereby running afoul of various privacy and ethical standards. That simple mindlessness can lead to frantic attempts to retrieve emails for privilege or hasty explanations of half-thought-out strategies.
One of the easiest such mistakes to make is to hit “reply all” instead of just “reply” during long email chains. Of course, hitting “reply” sends your email just to one party; hitting “reply all” sends it to all parties in the chain. And long email chains could include opposing counsel and their clients—a definite no-no if your bar ethics forbids communication with opposite parties directly as a corollary to ABA Model Rule 4.2.
Now, the ABA has some guidance on this—and it is sort of surprising.
ABA Formal Opinion 503 relates to ABA Model Rule 4.2 (and Ohio Rules of Professional Responsibility 4.2), the “no-contact” rule. Under this rule, a lawyer may not communicate with a represented party absent to permission of the court or that party’s counsel.
The new formal opinion says that a lawyer would not violate 4.2 if she hits “reply all” to an email that contains the addresses of represented parties—particularly parties represented by opposing counsel who are in that specific email chain.
Why? Because, says the opinion, “[a]bsent special circumstances, lawyers who copy their clients on emails or other forms of electronic communication to counsel representing another person in the matter impliedly consent to a ‘reply all’ response from the receiving counsel. Accordingly, the reply all communication would not violate Model Rule 4.2.”
In other words, the onus is on the original sender for making the mistake of including client information in an email sent to opposing counsel. The opinion even gives the original sending attorneys a little advice on avoiding this mess—like checking to see who all is on the email chain, including a disclaimer that hitting “reply all” does not constitute a waiver of 4.2, or the really radical idea of sending paper letters to one another (never going to happen).