The New Jersey Advisory Committee on Professional Ethics has determined that if a New Jersey attorney includes their own client on an email to opposing counsel, they are giving implied consent for that attorney to respond to the lawyer and his/her client in a responsive email. This opinion runs counter to findings by Ethics Committees in other States. The Committee determined that emails are more “conversational” and are closer to conference calls than actual written letters.
The issue was raised by an attorney who claimed that he often included his clients on emails to opposing counsel. He then alleged that a lawyer who hit “Reply All” and included his client without his prior consent was communicating with someone who is represented, thereby violating the Professional Code of Conduct. The Committee disagreed that this is an ethics violation. They noted that “Reply All” in a group email should not be an ethics trap for the unwary or a “gotcha” moment for opposing counsel. The Committee recognized that it can be often hard to determine among the names in the “cc” who they are actually connected with. Rather than burdening the replying lawyer with the task of figuring out who is included in the group email’s recipients sent by other counsel, the initiating lawyer (who may not consent to a response to all) should bear the burden of omitting their own client from the group or perhaps just blind copying their client.
The point to be made here is that lawyers should be very careful on who they “cc” on any email. Protecting attorney-client communications is an obligation and, in some circumstances, it can be waived thereby potentially resulting in a breach of ethics. If you are confronted with an ethics issue at any point, please do not hesitate to contact the lawyers at Hagner & Zohlman, LLC.