The Colorado Bar Association Ethics Committee on March 6 released Opinion 148 addressing ethical issues that may arise when a lawyer includes clients in group emails or texts with other parties. The CBA clarified issues can impact both the attorney who sends the communication and the one receiving it. Primarily the ethical concerns focus on the unauthorized disclosure of information relating to representation of the client and the extent of any implied consent.
The committee covered three Colorado Rules of Professional Conduct: Rule 1.1 which discusses competence, Rule 1.6 about confidentiality and Rule 4.2 which focuses on communications with people represented by counsel. Each rule impacts the ethical obligations of lawyers who send or receive group emails and texts.
The committee also opined “that the sending lawyer who has included the lawyer’s own client in a group email or text to other counsel has impliedly consented to having the sending lawyer’s client included in a reply from a receiving lawyer.” The committee clarified a receiving lawyer wouldn’t violate Rule 4.2 by including the sending lawyer’s client in a reply, subject to certain limitations.
Attorneys can avoid any issues by sending the communication only to the receiving lawyer and then separately forwarding it to their client. The committee called this solution a “two-email alternative.”
The Duty of Competence in Rule 1.1
Opinion 148 noted attorneys who send group emails and text to their own clients should be aware of and avoid the negative consequences of that action. It also noted lawyers can avoid the issue entirely by “conferring proactively with each other and their respective clients at the outset of a matter about the use and parameters of group communications, if any.”
Confidentiality in Rule 1.6
The committee explained Rule 1.6(b) identifies a few exceptions to the confidentiality rule, but wrote “none of those exceptions allow the disclosure of information for purposes of convenience or speed in communications.”
The scope of the information under Rule 1.6 is quite broad. Comment 3 under the rule notes it “applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” The committee notes disciplinary authorities have acknowledged for decades how broad that scope is in practice.
At a minimum, the committed clarified, attorneys who send group emails and texts to other parties with their clients included reveal the client’s email address or phone number. For more complex matters like in personal injury cases, attorneys who send group communications to insurance parties and clients may reveal there is an insurance policy with a specific company and also identify the representative with the insurance company who makes the decisions.
“Reply all” can only complicate matters, the committee notes. The client, insurer or another party may communicate sensitive or privileged information intended only for counsel to other parties. The committee notes the risk of “reply all” isn’t eliminated if the sending lawyer blind copies or BCC’s anyone.
The committee poses the two-email alternative as a way to avoid this ethical concern.
Implied Consent in Rule 4.2
Opinion 148 explains a sending lawyer should anticipate receiving lawyers may hit “reply all” on a group communication. “Even where the sending lawyer does not invite a reply, the sending lawyer should be aware that the other recipients, including other counsel, may send a reply,” the committee clarified.
In re Wallrab, the Colorado Supreme Court in 2018 “held that, in certain circumstances, a lawyer’s consent under Rule 4.2 to an opposing counsel’s direct communications with the lawyer’s client may be implied.”
The American Bar Association’s Standing Committee on Ethics and Professional Responsibility noted in Formal Opinion 503 sending lawyers impliedly consent under Rule 4.2 to get a “reply all” response from the other attorney.
While receiving lawyers don’t violate Rule 4.2, sending lawyers might. The CBA committee again poses the two-email alternative to avoid this issue.