Earlier this month, the Colorado Bar Association Ethics Committee released Formal Opinion 148, which addresses email issues. Like most Ethics Opinions, this one appears to have been written with outside counsel primarily in mind. However, it does have important notes for in-house counsel as well. In broad summary, the opinion provides:
- A lawyer should not cc (or even bcc) its own client on emails unless the lawyer has received informed consent from the client. Rule 1.0 states: "'Informed consent' denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct." So, do not be surprised if your outside counsel wants to talk with you about this issue.
- If the lawyer does cc the client, the sending lawyer is consenting to opposing counsel directly contacting the client via "reply to all." Conversely, if the other side cc's its own client, the receiving lawyer is usually okay replying to all and thereby directly contacting the other client (however, the Opinion provides some guidance as to some other issues that can arise with replying to all). As an aside, ABA Ethics Opinion 443 says it is okay for a lawyer to go around outside counsel and directly contact opposing in-house counsel.
- Instead of cc'ing or bcc'ing the client, the Ethics committee recommends that a lawyer first send an email to others, and then follow up with a separate email only to the lawyer's own client forwarding the group email. This may increase email traffic, but avoids the risk that the client inadvertently replies to all and discloses information that should not be disclosed.
The entire opinion can be found here.
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