Copying the Client
Here's something that comes up frequently. Frequently enough that I am sure they will (if they do not already) have a rule which covers this.
Many lawyers engage in the annoying practice of copying the client when communicating with opposing counsel via email. I think maybe to let the other lawyer know that the client is being made aware of the communication? For example, opposing counsel emails you back and says "Your settlement proposal is rejected outright, it was silly." Why would opposing counsel copy the client on such an email? The better question is why wouldn't he or she blind copy the client?
The reason obviously (other than just not being in tune to email) is to let you know that the client is in the loop. "This is being done with the client's full sign off and at the client's direction." Sometimes the lawyer may be posturing (as all lawyers do) or responding to substantive points. There are many legitimate reasons to keep the client in the loop in these situations. But this is easily accomplished by blind copying the client.
The problem on the recipient's end is that the urge is great to hit reply all. And I've done this a couple of times. Is it inappropriate for a lawyer to reply all and thereby make a statement to opposing counsel and his or her client? Should opposing counsel have left his or her client off the email list initially (and blind copied the client)? Does the sender of the initial email bear some responsibility?
How would replying to all be any different than having a conversation with opposing counsel in the hallway of the courthouse after the hearing, with his client standing there? Any rule that would prohibit replying to all would be akin to requiring lawyers to carry earplugs to give to your client's adversary while you talk about the case to his or her lawyer. If opposing counsel is going to start a conversation, and in the process nominate the participants to that conversation, then the whole dialog -- with all named participants -- should be allowed to play out.
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Evan that's a fair argument definitely, and always my reaction when I receive an email where opposing counsel has copied the client. I wondering if some jurisdictions have a restrictive rule.
What happens, for example, when opposing counsel's client sends you an email directly. There we would all agree you wouldn't want to reply back and would engage directly with opposing counsel, rather than the client. I guess in this case opposing counsel is to blame.
It happens with amazing frequency.
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Stepping back a bit, I usually resist the temptation to cc: or even bcc: clients in communications with opposing counsel because I don't want the client to accidentally Reply to All with some confidential communication that gets sent to opposing counsel.
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It's generally against the rules for a lawyer to hit "reply to all" and communicate with another lawyer's client unless the other lawyer has given permission. MRPC 4.2. I think it's aggressive to infer such consent merely because the lawyer included his/her client in the original communication. Eric.
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