The Risk Manager, Spring 2018

Reasons Not to Use “cc:” “bcc:” or “reply all:” When Copying Emails to a Client

More than one lawyer has erred when sending, forwarding, or copying emails to a client. KBA Formal Ethics Opinion E-442 (11/17/17) provides guidance for coping with this issue for Kentucky lawyers.  The opinion advised that:

  • When a lawyer sends an email to an opposing lawyer with “cc” to a client of the sending lawyer, the receiving lawyer should not respond to the sending lawyer by using the “reply all” key.  This is a violation SCR 3.130, Rule 4.2, Communication with person represented by counsel.
  • A lawyer sending an email to an opposing lawyer with “cc” to a client of the sending lawyer risks violating confidentiality rules by revealing the identity of the client, that the client received the email with any attachments, and “in the case of corporate clients, the individuals the lawyer believes are connected to the matters and the corporate client’s decision makers.”

The opinion concludes with the advice that to avoid these problems “forward” emails to clients or use the “bcc” button for clients on email sent to other lawyers. Other precautions are to move the “reply all” button away from the reply button or install warning messages to prompt people to be sure they want to reply to all before they send.
As a supplement to the KBA opinion, we offer the following extracts from the N.Y. State Bar Association Committee on Professional Ethics Opinion 1076 (12/8/15) with this helpful guidance on use of “cc:” “bcc:” or “reply all:”

  • Although it is not deceptive for a lawyer to send to his or her client blind copies of communications with opposing counsel, there are other reasons why use of the either “cc:” or “bcc:” when e-mailing the client is not a best practice.  
  • “cc:” risks disclosing the client’s e-mail address.  It also could be deemed by opposing counsel to be an invitation to send communications to the inquirer’s client. …. Rule 4.2(a) applies even though the represented party initiates or consents to the communication.  
  • Although sending the client a “bcc:” may initially avoid the problem of disclosing the client’s email address, it raises other problems if the client mistakenly responds to the e-mail by hitting “reply all.”  For example, if the inquirer and opposing counsel are communicating about a possible settlement of litigation, the inquirer bccs his or her client, and the client hits “reply all” when commenting on the proposal, the client may inadvertently disclose to opposing counsel confidential information otherwise protected by Rule 1.6.