Here is a recent Daily Record column. My past Daily Record articles can be accessed here.
NYC Bar on Ethics of Copying Clients on Emails
Lawyers have used email for decades, ever since the mid-1990s when ethics committees determined that it was permissible for lawyers to use email to communicate about case-related matters. Fast forward to 2022, and most lawyers now use email at least occasionally as part of their day-to-day practice.
However, some have begun transitioning to more secure communication methods like encrypted client portals. This switch is occurring because traditional email can be problematic for several different reasons.
For starters, it’s inherently unsecure and is the equivalent of mailing a postcard written in pencil. For that reason, as technology improves, ethics standards are changing with the times, and a number of jurisdictions have handed down opinions advising lawyers to avoid unecrypted email when discussing particularly sensitive information.
Another problem encountered when using email is that the features that allow copying (cc) or blind copying (bcc) clients, while seemingly innocuous, can present ethical issues. The NYC Bar recently opined on this practice in Formal Opinion 2022-3. At issue was whether it is ethical for lawyers to cc or bcc their clients on emails sent to other attorneys.
The Committee on Professional Ethics explained that this common practice triggers several ethical concerns: “Attorneys who copy their clients on email communications with other counsel may expose their clients to risks, including: (1) that the client will receive a direct communication from other counsel; and (2) that the client will intentionally or inadvertently reveal confidential information or waive privilege by replying to all.”
At the outset, the Committee focused on the ethical obligations of the client’s attorney in this situation. According to the Committee, attorneys who choose to copy their clients on emails to other counsel must engage in a risk-benefit analysis. The Committee explained that in litigation and other adversarial matters, the risk nearly always outweighs the benefit. Thus in those cases, lawyers should consider forwarding the email to their clients rather than copying them on the email.
In comparison, for less contentious proceedings, lawyers can copy their clients on emails with other attorneys but should consider taking the precaution of “(1) entering into an agreement with the other attorneys making clear who is to be cc’d on communications; and (2) discussing the risks of such communications with the client, advising the client to be mindful of such risks, and ensuring the client’s appreciation of the risks and agreement to proceed as contemplated.”
Next, the Committee addressed what a lawyer should do upon receiving an email from an attorney in which that attorney’s client is copied. After considering precedent from both the NYC Bar and other jurisdictions, the Committee determined that “an attorney who cc’s their own client on an email to other counsel should reasonably expect that such other counsel will use the reply all function and thus consents to the other counsel doing so within the meaning of Rule 4.2(a).” However, the Committee cautioned that “(t)his implied consent is limited, however, and must be construed reasonably under the circumstances.”
Finally, the Committee considered the receiving attorney’s ethical duty when opposing counsel “bcc’s their client on an email with other counsel and the client then replies to all.” The Committee concluded that in that situation attorney of the client who has been bcc’d “has not impliedly consented, without more, to other counsel’s contacting the attorney’s client.”
If you’re a New York lawyer and are still using email to communicate with clients, take heed. Think twice before adding clients to an email. Otherwise, you risk opening up a Pandora’s box of ethical risks. I would instead suggest that a wiser route to take would be to avoid the ethical issues altogether by simply forwarding the email to your client. As I always say, better safe than sorry.
Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase legal practice management software. She is the nationally-recognized author of “Cloud Computing for Lawyers” (2012) and co-authors “Social Media for Lawyers: The Next Frontier” (2010), both published by the American Bar Association. She also co-authors “Criminal Law in New York,” a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at firstname.lastname@example.org.
Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education at MyCase law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at email@example.com.