Is it OK to hit “Reply All” when responding to an email from another lawyer when that lawyer cc’d their own client on the initiating email? Have you just violated RPC 4.2? Or is including the other client permissible because they were already included in the initial email?
There’s a new advisory opinion which helps you answer this question. The Committee on Professional Ethics just posted Advisory Opinion 202201 on the WSBA website, which takes a comprehensive look at the issue.
Short answer: “Reply All” may be allowed if consent can be implied in the situation, but express consent is always the prudent approach. Bear in mind that this opinion is advisory; other professionals, courts, or states’ ethics opinions may come to a different conclusion.
RPC 4.2 states that in representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order. The purpose of RPC 4.2 is to protect a client from overreaching by other lawyers and interference by those lawyers in the attorney-client relationship. (Be sure to read the rule and its comments in their entirety.)
Consent to communication about a matter with a represented client can be expressly granted by the client’s lawyer. Is the fact that a client was included on an initial email consent for the responding lawyer to include them in a reply?
It’s not easy to say. The opinion concludes that consent may be implied in a situation depending on a variety of factors, including the prior course of conduct between the lawyers and the adversarial nature of the matter. The responding lawyer must make a good faith determination if implied consent has been given.
The safest course of action is to establish at the outset whether “Reply All” is agreed to by all participants—or don’t hit that button.