Have you ever received an email message from opposing counsel in which he or she has copied his or her own client?  Of course, you have.  We all have.  It’s how we respond to these messages that is a source of continuing controversy in the realm of professional ethics rules.

Rule of Professional Conduct 4.21 provides that, “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter . . . .” This Rule is intended to protect represented persons from possible overreaching by counsel who represent an adverse party.  But Rule 4.2 also creates a trap for the unwary because a “reply all” response, depending on your jurisdiction, could constitute a violation of professional ethics rules when an opposing party was included in the original email message.  Such a reply might be deemed a communication with a person represented by counsel which, according to Rule 4.2, is prohibited without the consent of the represented person’s lawyer.

In October of 2013, the North Carolina State Bar released North Carolina Opinion 2012-7 advising that a “prudent practice is for all counsel involved in a matter to establish at the outset a procedure for determining whether it is acceptable to ‘reply to all’ when a represented party is copied on an electronic communication.”2 Further, the North Carolina’s opinion indicated that replying to all in this scenario has “the potential for interference with the attorney-client relationship.”

In November of 2019, the Kentucky Bar Association concluded in Opinion KBA E-442 that “[a] lawyer who, without consent, takes advantage of ‘reply all’ to correspond directly with a represented party violates Rule 4.2.”3 The opinion reasoned that copying one’s own client on an email, without more, cannot “reasonably be regarded as consent [authorizing opposing counsel] to communicate directly with the client.”4

Despite the interpretation of Rule 4.2 discussed above, a New Jersey ethics opinion released in March of 2021 takes an opposing and somewhat controversial position on this issue. According to New Jersey ACPE Opinion 7395, it is generally acceptable for attorneys to “reply all” to a message from opposing counsel even when that counsel’s client was copied on the original email message. According to New Jersey’s Advisory Committee, email communications are comparable to a conversation, and by copying a client, a lawyer implicitly authorizes a response to the whole group that includes his or her client. The opinion concluded that “reply all in a group email should not be an ethics trap for the unwary or a ‘gotcha’ moment for opposing counsel.”  The committee acknowledged that most jurisdictions have rejected this approach to the issue but contended that “opinions from other jurisdictions do not fully appreciate the informal nature of group email or recognize the unfairness of exposing responding lawyers to ethical sanctions for this conduct.” 

Whether New Jersey’s approach to the “reply all” trap will spur other states to follow suit remains to be seen.  For the time being, however, it is still the best practice in most jurisdictions to avoid “reply all” responses to opposing counsel when represented parties may have been copied on the original email message. To that end, some firms, including Womble Bond Dickinson (US) LLP, have disabled the “reply all” button from the email reply tab in Microsoft Outlook. Attorneys can still “reply all” to an email message, but it takes a few extra key strokes rather than a single click to make it happen.  The goal of such measures, of course, is to give lawyers a moment’s pause to consider whether a “reply all” response is appropriate under the circumstances. 


1 American Bar Association Model Rules of Prof'l Conduct R. 4.2
2 North Carolina State Bar, Copying Represented Persons on Electronic Communications, 2012 Formal
Ethics Op. 7 (Oct. 25, 2013).
3 Kentucky Bar Association, Ethics Op. E-442 (Nov. 17, 2017).
4 California Opinion 2011-181, New York City Opinion 2009-1, Illinois Opinion 19-05, Alaska Opinion 2018-1, and South Carolina Opinion 18-04 are other notable examples of state bars warning attorneys of the potential violations that could result from sending an email through “reply all” to opposing counsel and his or her client.
5 New Jersey Advisory Committee on Professional Ethics, Lawyers Who Include Clients on
Group Emails and Opposing Lawyers Who “Reply All”, Op. 739 (Mar. 10, 2021).