No. 16-01
KBA Legal Ethics Opinion No. 16-01
Kansas Ethics Opinions
January 12, 2016
J.
Nick Badgerow, Chair.
TOPICS:
Copying Opposing Parties in Electronic Communications;
Parties Included in Conference Calls; Copying Client on Rude
or Inflammatory Electronic Communications
DIGEST:
A lawyer should not include a represented party as a copy
recipient of e-mails directed to that party's lawyer,
absent the express or implied consent of the other lawyer. A
lawyer need not disclose to another lawyer that his client or
a third-party present in the room in a speakerphone
conference call. A lawyer may delete rude, insulting or
inflammatory language from communications received from
opposing counsel before sending them to the client, but all
unredacted communications should be provided to the client,
if requested.
DATE OF
REQUEST: December 14, 2015
REFERENCES:
Rules 4.2, 1.4, 8.4(c), Kansas Rules of Professional Conduct
("KRPC").
FACTS:
Lawyer inquires about the propriety of copying a party known
to be represented by counsel on electronic mail
communications addressed to that opposing counsel; the
propriety of allowing a client or third-party to listen in on
conference calls without disclosing the presence of that
client or third-party; and the propriety of not sending to
the client communications from opposing counsel which may be
considered rude, insulting or inflammatory.
QUESTIONS:
(a) Is
it appropriate for a lawyer to include a represented party as
a copy recipient of e-mails directed to that party's
lawyer, particularly as a "reply to all" in
response to an e-mail copied by the original lawyer to
his/her client?
(b)
Under what circumstances may a lawyer have a client or
third-party present in the room within earshot of a
conference call with an opposing lawyer, without disclosing
the presence of the client or third-party to the opposing
party?
(c)
Under what circumstances may a lawyer redact or delete from
communications received from opposing counsel those portions
of the communications which may be deemed rude, insulting or
inflammatory?
ANALYSIS:
Scenario
1: Attorney A sends an email to Attorney B with
his client copied on the email. Attorney B hits
"reply-all" on the email, inadvertently replying to
both Attorney A and his client. Attorney A then claims that
Attorney B had acted unethically by communicating with
Attorney A's client without the attorney's
permission. Attorney B requests that Attorney A refrain from
copying his client on e-mails to avoid this issue. Attorney A
refuses stating that his client has a right to know what
Attorney A is doing on client's behalf. Is it okay to hit
"reply-all" on an email to Attorney A and the
adverse client? If it is not okay, what is the remedy when
done inadvertently? What is the "best practice"
when replying to emails that include multiple recipients
(adverse parties, support staff, etc.). Also, if Attorney B
requests that Attorney A not include the client on the email
(to avoid any future "mistakes"), can Attorney A
refuse that request?
Rule
4.2(a), KRPC, provides as follows:
In representing a client, a lawyer shall not communicate
about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer
or is authorized to do so by law or a court order.
See also, In re Hillbrant, 286 Kan. 280, 287, 182
P.3d 1253 (2008).
Attorney
A has an obligation to keep his/her client advised of
developments in the client's matter (Rule 1.4(a), KRPC),
and copying his/her client on e-mails is a suitable and easy...
