For a while now, I have been wanting to write a Risk Tip about the perils of cc’ing too many, or the wrong, people in emails. But I never quite had the right pop culture hook. There’s C.C. Bloom, Bette Midler’s character from Beaches. Beaches!? No thanks. And I never saw the 1981 movie Carbon Copy (and I don’t think anyone else did either). So I shelved it.
Then, as I was reading the paper during my morning commute last week, there it was in virtual black and white. New York Yankee pitcher C.C. Sabathia reportedly confronted a heckler in Toronto leading to a street brawl (and further leading to C.C. getting scratched from the lineup the next day). C.C. “acknowledged having used poor judgment,” stating: “A bad decision on my part. . .You know, I probably should have just kept quiet.”
And there you have it. The ease and alacrity with which we can add names to an email address list or hit Reply All has all too often replaced our good judgment. And just as often, we realize that we probably should have kept quiet rather than cc’ing half the civilized world on an email.
And while C.C.’s lapse in judgment is not likely to have any negative impact on his pitching, lawyers who use bad judgment when they c.c. can suffer lasting consequences:
- You can waive the A/C privilege. The more people you cc (even within an organization), the more likely you will include someone who is a stranger to the privilege, resulting in either the privilege not attaching in the first place or a waiver if there are privileged emails earlier in the chain.
- You can violate the “no contact” rule. ABA Model Rule 4.2 prohibits a lawyer from contacting a person the lawyer knows to be represented by another lawyer in the matter, absent proper consent. At least one state bar opinion has suggested that cc’ing adversary clients on email, even where the adversary lawyer also is copied, can violate Rule 4.2.
- You can lose a client. At the very least, it’s embarrassing to copy the wrong person on an email. But you can also face an uphill battle trying to convince a client to trust you after you’ve sent a client-intended communication to an adversary.
So think twice before you hit Reply All. And before you cc anyone, ask yourself who that person is and why s/he should be cc’d. If you don’t have a reasoned basis for doing so, then don’t.
It’s really pretty easy. Certainly, it’s no harder than C.C. Sabathia giving up his Cap’n Crunch (another C.C.) addiction.
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