what to do if attorneys email to client is accidentally sent to journalist
Should you copy your client on emails to opposing counsel?
Yous are sending an e-mail about a case to opposing counsel and want to provide a re-create to your customer. Should you just "cc" or "bcc" your client on the e-mail or would information technology be better to separately forrard a copy of the email to your client? Or you receive an electronic mail from an opposing lawyer that includes a "cc" to the opposing lawyer's client. Does this mean your reply can become to both the opposing lawyer and their customer?
These are issues raised by the ease and convenience of emails. When sending a letter to an opposing counsel by mail, in that location is not the same concern that your client may accidentally copy their response to opposing counsel every bit well because that would call for an additional copy of the letter, an boosted envelope, and an boosted postage stamp. However, with e-mail, hitting "reply all" instead of "reply" is all too easy to practise, every bit many of the states have had the misfortune of learning. In the legal context, it tin cause more than embarrassment. It risks exposure of confidential information and potential violations of the no contact rule.
Confidentiality Concerns
Lawyers have a duty to communicate with their clients nether Dominion 4-1.4 of the Rules of Professional person Acquit. This includes keeping clients reasonably informed almost the status of their matter and to explicate things to the client to the extent reasonably needed to let the customer to make informed decisions. One way to do this is to go along a client informed about communications between you and the opposing lawyer. When those communications are electronic, a seemingly easy manner to inform the client of the communication is to copy or blind copy the customer on the email. Nevertheless, this tin can create potential bug with confidentiality and/or privilege.
Rule 4-ane.half dozen is the ethical rule of confidentiality. The ethical duty of confidentiality is broader than attorney-privilege. As noted in the comment to the rule, Rule 4-1.vi makes all data relating to the representation of a customer confidential, whatever the source of the information. The danger in copying or bullheaded copying a client on an email to opposing counsel is that the client may include opposing counsel on the client's reply by using "answer all" either by mistake or on purpose. This can result in confidential information being disclosed and, depending on the information and circumstances, a waiver of privilege. While information technology is important to remind the customer not to include opposing counsel in any response, mistakes can happen. As discussed in Kentucky Bar Association Ethics Opinion KBA Due east-442 (2017), not using a "cc" to the client prevents the customer from inadvertent communications with opposing counsel past using the "respond all" button. The Kentucky Stance also cautions "[t]he 'respond all' button presents a dangerous risk to the sending lawyer because the sender might inadvertently send an embarrassing or harmful email to unintended recipients."
This risk can still be present if you blind copy a client on an email to opposing counsel. Every bit noted in Alaska Bar Association Ideals Stance 2018-1, a client who has been blind copied on an email may even so employ "respond all" and inadvertently disclose confidential information.
Further, at to the lowest degree one court has plant that blind copying a customer on an electronic mail to opposing counsel creates a foreseeable risk that the client will reply to all recipients. In Charm v. Kohn, 27 Mass.L.Rptr. 421, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010), the lawyer blind copied the client on an email to opposing counsel. The client then used "reply all" instead of "reply" to ship the customer's response that the court said was clearly intended just for the client's lawyer. In that example, the courtroom ultimately constitute that the data was yet privileged and that opposing counsel could non use the email. Merely the court institute it to be a close question and stated "Respond all is risky. So is bcc. Further carelessness may compel a finding of waiver." Charm, 27 Mass L. Rptr. 421 *ii.
While the court in Amuse ultimately found that privilege was not waived by the client'south respond all to the email, the prudent course of behave is to not put yourself in a position where this even becomes an issue. The better course of action is to separately forrad the emails to the client. That way opposing counsel is not included in the list of recipients of the forwarded email and it reduces the risk that the customer may disclose confidential data that may harm the client's interests.
'No Contact' Rule Concerns
Dominion 4-4.2 is also known as the "no contact" rule. Under Rule 4-4.ii, a lawyer cannot communicate near a affair with someone the lawyer knows to be represented by another lawyer in the matter unless the other lawyer consents. This begs the question of whether a lawyer is giving consent to communications with the lawyer's customer when the lawyer copies the client on emails to opposing counsel. While there is no formal ethics opinion in Florida addressing this event specifically as to emails, in that location is a disciplinary example and an ethics stance that provide guidance. Additionally, several other states have issued opinions that can provide helpful guidance.
The Florida Bar v. Nunes, 661 And so. 2d 1202 (Fla. 1995), provides guidance, even though it does not involve emails. In this example, a lawyer for a bank obtained a final judgment of foreclosure and a certificate of title in the bank'due south favor as to a piece of belongings. A sure bank employee was the contact person for the bank'due south lawyer on the matter. A lawyer represented a client making a claim to the foreclosed property. The lawyer sent a alphabetic character to the bank'southward lawyer critical of the depository financial institution's lawyer's handling of the foreclosure and copied the bank contact person. The lawyer was disciplined under Rule 4-4.two for copying the bank contact person on the alphabetic character sent to the depository financial institution's lawyer.
In Florida Ideals Opinion 76-21, a lawyer asked almost the propriety of sending copies of letters to opposing counsel sent to the opposing political party, an insurance company. The inquiring lawyer suspected opposing counsel was not transmitting information, including a settlement offer, to the opposing party. The inquiring lawyer asked whether then existing DR vii-104(A)(ane) (the predecessor of current Rule 4-four.2) prohibited the transmission to the represented opposing party of copies of the messages sent to opposing counsel, arguing that the intent of the rule may be only to prohibit discussions with a represented party outside of the presence of and noesis of opposing counsel. The Professional person Ideals Commission opined:
To exclude from the proscriptions of those provisions of the Code letters to an agin political party, and include merely discussions as suggested past the inquiring chaser, would not simply exist reverse to the specific terms of DR 7-104(A)(1) simply would emasculate the meaning and intent of its provisions. To "communicate" data is to transmit that information, whether or not it is discussed with the political party to whom information technology is communicated.
This reasoning applies to electric current Rule 4-4.2 every bit it also uses the term "communicate." Similarly, if you cannot copy a represented person on a letter sent to that person's lawyer, you cannot copy that person on an email sent to that person'south lawyer.
Another state has advised that the mere fact that a lawyer either copied or bullheaded copied that lawyer's client on an email to opposing counsel is non consent for opposing counsel to include the represented person in opposing counsel's response to the electronic mail. The North Carolina State Bar in 2012 Formal Opinion 7 stated, "[t]he fact that Lawyer B copies her own client on the electronic communication to which Lawyer A is replying, standing alone, does not permit Lawyer A to 'reply all.'"
Conclusion
In conclusion, the safest course of action is to separately forwards whatever emails to opposing counsel you desire to share with your customer. If you are on the receiving end of an email that includes the opposing lawyer's client on the e-mail, you cannot include the opposing lawyer'southward client on the email unless you have opposing counsel'due south permission under Rule 4-4.2.
Source: https://www.floridabar.org/the-florida-bar-news/should-you-copy-your-client-on-emails-to-opposing-counsel/
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