The Alaska Bar Association recently issued an opinion to address two questions: (i) Under what circumstances, if any, may a lawyer “cc” or “bcc” the lawyer’s client in e-mail correspondence with opposing counsel? and (ii) What are the ethical responsibilities of opposing counsel in responding to an e-mail where the e-mail includes a “cc” to opposing counsel’s client?
First, the opinion advises that, recognizing the obligation to protect a client’s secrets and confidences, it is not advisable for a lawyer to “cc” their client in a message to opposing counsel concerning any matter that may elicit a reply-to-all that could reveal a client confidence.
Secondly, from a Rule 4.2 point of view, “it should be obvious as well that a lawyer cannot ‘cc’ opposing counsel’s client in a communication without the consent of the opposing lawyer.” The more difficult question is whether an opposing lawyer who receives a communication where the sending lawyer has cc:d his or her own client. Following an opinion by the North Carolina Bar, the Alaska Bar Opinion concludes that “a lawyer who copies their client in an e-mail communication with opposing counsel is not, merely by copying the client, giving consent to the receiving lawyer.” While the easiest and most direct way to determine whether the receiving lawyer can ethically reply-to-all is to ask the sending lawyer, the opinions recognize that “there may be circumstances where the sending lawyer has given implied consent” and sets forth the factors which should be considered: (1) how the communication is initiated; (2) the nature of the matter (transactional or adversarial); (3) the prior course of conduct of the lawyers and their clients; and (4) the extent to which the communication might interfere with the client-lawyer relationship. The opinion notes that the Rules only apply to the subject of the representation or other client confidences, so it is likely not problematic to cc: a client on a scheduling or other purely administrative matter. The Bar recommends that lawyers establish early on whether they may reply-to-all communications, and that lawyers not cc: their clients on electronic communications with opposing counsel, but rather, forward the communication to their client.
Finally, the Alaska Bar, following New York State Bar opinion, addresses the separate question of whether a a lawyer should bcc: his or her own client. The opinions note that a client who receives an e-mail as a bcc: may reply-to-all without realizing that he or she is communicating directly with opposing counsel, and thereby inadvertently disclose information that is privileged or confidential. Therefore, as with cc:s, it is generally not advisable for a lawyer to bcc: his or her client relating to the matter of the representation or that may give rise to a response that could reveal client secrets or confidences.
Alaska Bar Association Ethics Opinion No. 2018-1 (Jan. 18, 2018).
See also: North Carolina Formal Ethics Opinion No. 7 (2012); New York State Bar Ethics Opinion No. 1076.