The Pitfalls of “Replying to All”
During those incredibly busy days all lawyers face, it is important to be mindful of the recipients of any electronic communication. There may be nothing more perilous than the “Reply to All” function on one’s email service; so dangerous is the function that the Wall Street Journal has called it “the button everyone loves to hate.”
Certainly it is now an ancient cliché to exclaim that technology has dramatically transformed the way we practice law. Owing to the daily advances in technology, courts and state bars continue to address emails and broader digital communications. For instance, in October, the North Carolina Bar Council issued a formal ethics opinion, the 2012 Formal Ethics Opinion 7, to address the issue of whether a lawyer commits an ethical breach if he or she, in response to a missive from opposing counsel, “replies to all” when that lawyer knows that the opposing counsel’s client was copied on the original email. The North Caroling Bar Council found that this “reply all” may not be an ethical breach, but that it is based on a fact intensive, totality of the circumstances analysis. In essence, the Bar Council found that “the fact that a lawyer copies his own client on an electronic communication does not, in and of itself, constitute implied consent to a ‘reply to all’ responsive electronic communication”). See id. In so doing, the Bar Council noted, “The 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.’ While Rule 4.2(a) does not specifically provide that the consent of the other lawyer must be ‘expressly’ given, the prudent practice is to obtain express consent. Whether consent may be ‘implied’ by the circumstances requires an evaluation of all of the facts and circumstances surrounding the representation, the legal issues involved, and the prior communications between the lawyers and their clients.” See id.
This guidance makes it clear that one should refrain from blindly “replying all” to a large group email when one is unaware of the identity of the potential recipients. In light of these issues, lawyers may wish to pay a bit more attention to the individuals copied on any given email (particularly in these days when 20 or 30 people may be copied on an email chain). To its credit, the Bar Council offered some helpful hints to assist in the determination of what constitutes implied consent from the party’s counsel, but in the end, it is probably best to secure express consent rather than attempt to rely on the more nuanced implied consent.
Email is quick and easy, perhaps too much so, which leads to impetuous emails that one may regret later. If this issue surfaces, the lawyer recipient may wish to simply write a private email to his opposing lawyer, noting the fact that he has copied his own client on the email, and request formal permission to reply to all. Expression permission—or an outright rejection of the request—resolves any dilemma.
In another portion of the ethics opinion, the Bar Council concluded that a lawyer may not spontaneously copy an opposing counsel’s client on a communication (unless permitted by law or the opposing counsel has so consented). This conclusion makes sense, as does the Bar Council’s admonition that “[u]nder no circumstances may [a lawyer] respond solely to [an opposing lawyer’s] client,” which goes without saying. See id.
Another example of the “reply to all” function wreaking havoc on a lawyer’s life is in the context of a large, multi-party case involving a joint defense group. Perhaps the opposing counsel’s email address has been inadvertently included with the email addresses of the defense group. An email discussion ensues of defense strategy and other joint privileged issues, when one attorney later determines that the plaintiffs’ counsel was included on the email string. The best way to avoid this is to review the addresses of the email recipients carefully before replying, and by marking the communication clearly as “joint defense privileged communication.”
It is not just lawyers who should be wary of the “reply to all” function. This function has found its way into many litigated disputes, including various employment matters. Indeed, whether it is in the workplace or the family, litigants cannot seem to resist making the “reply to all” error. See, e.g., Rogers v. PAR Elec. Contractors, Inc., No. 1: 10 CV 1402, 2011 WL 3862089, at *1 (N.D. Ohio Sept. 1, 2011) (noting, in age discrimination case, that evidence included email in which employee sent a “reply to all” email (received by the plaintiff), in which an employee stated: “Wonder how much the old [expletive] spent on this?”); Rynd v. National Mut. Fire Ins. Co., No. 8:09–CV–1556, 2012 WL 939387, at *4 (M.D. Fla. Jan. 25 2012) (noting, in bad faith case, that challenged attorney time entries included ‘[f]ormulate and prepare email to Marcus re: assumption that ‘reply all’ button was used’”); Omogbehin v. Lahood, No. 06–4581, 2010 WL 2628977, at *2 (D.N.J. June 28, 2010) (noting, in discrimination/retaliation suit, that plaintiff disputed employer’s allegations of misconduct and asserted that “firing him for one mistaken ‘reply all,’ for which he publicly apologized, was a wholly disproportionate response”); Rhodenizer v. City of Richmond Police Dep’t, No. 3:09CV306, 2010 WL 723793, at *5 (E.D. Va. March 1, 2010) (noting that employee’s reply all email, asking “Can I watch?” in response to mass email announcing female defense tactics class, was potential evidence of hostile work environment); Tittle v. Skipp-Tittle, No. UWYFA104022992S, 2012 WL 5476915, *6 (Conn. Super. Oct. 16, 2012.) (noting, in child custody matter, that party claimed a “foul” and “vituperative” email was “a result of an inadvertent hit on reply all to an email about a school event to the classmates’ parents”); Ohio Educ. Ass’n v. Lopez, No. 09AP–1165, 2010 WL 4102948, at *1 (Ohio Ct. App. Oct. 19, 2010) (noting, in breach of severance agreement case, that terminated employee had continued to send emails to employer, including advertisement promoting a way to avoid “reply to all” mistakes and attaching series of emails from employer).
This new ethical opinion from North Carolina—and the relatively recent cases cited above—are likely not the last that we will see of this issue, so it is always best to pause before hitting the “Send” button. A bit of caution at the outset could ultimately pay dividends in the long term.
For more on this issue, please see Karen Gledhill, “State Bar Adopts Ethics Opinion Impacting Email Communications,” Notes Bearing Interest (published October 2013.
Gallivan, White, & Boyd, P.A.
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Charlotte, North Carolina