There has been and continues to be differences of opinion amongst lawyers about using the “reply all” feature for emailing responses to other lawyers, in circumstances in which those other lawyers have copied their clients on the initiating email. Apart from the more annoying aspects of the “reply all” response, filling up your in-box with a panoply of responses to an email that was widely circulated when it is just as easy to press “reply” rather than “reply all”, there are also some ethical concerns associated with the use of the “reply all” function.
There is an issue as to whether or not a lawyer, by pressing “reply all” and communicating directly with a party represented by another lawyer is violating Rules 6.03 (7), (9) and (9.1) of the Rules of Professional Conduct (the “Rules”), which prohibit lawyers from communicating with represented parties, except where opposing counsel has consented to such communication. It is the view of many that pressing “reply all” to an email from another lawyer, who has copied his or her client, is not a violation of the Rules, on the basis that the other lawyer, in copying his or her client, is consenting(impliedly) to the responding lawyer responding to everyone and waiving the benefit of the rule. As the discussion goes, if you don’t want the other lawyer responding to your client, then it is best to “bcc” your client (but more on that option below). However, from the perspective of many, while it may not be a breach of the Rules, it is thoughtless and frequently annoying. Particularly when the other lawyer starts directing his or her comments directly to your client. In the olden days, had you written a letter to a lawyer and copied your client, would the other lawyer have responded directly to your client because of the cc at the bottom of the letter? We think not. Such being the case, we can’t see any reason to treat email communication any differently from a letter.
But worse than that, the inadvertent use of “reply all” has implications with respect to the disclosure of confidential and privileged information. For instance, a lawyer may blind carbon copy (bcc) his or her client on an email being sent to opposing counsel. The client may then use the “reply all” feature to respond to his or her own lawyer, forgetting that opposing counsel is included as an addressee.
Opposing counsel will receive the confidential/privileged communication and be faced with an ethical dilemma as to its use.
This particular issue has arisen in the United States. In finding for the defendant, the Court held that the inadvertent disclosure of privileged information does not lead to the automatic loss of attorney-client privilege, so long as it could be shown that reasonable steps were taken to prevent such disclosure. In that case, the Court acknowledged the lawyer’s immediate efforts to have the e-mail deleted by the opposing counsel and that the client’s mistake was a common and easy one to make. The Court warned, however, that the defendant should not expect such leniency in the future and that further carelessness could lead to a finding of waiver.
In another case, the Ontario Superior Court of Justice, Divisional Court, permitted the use of an e-mail inadvertently sent for evidentiary purposes. In that case, the court was of the view that the subject e-mail was essential in providing a complete understanding of the plaintiff’s legal position and its use for evidentiary purposes was therefore permitted.
Given the emerging state of the law, it is difficult to predict how the Courts or the Law Society will treat this issue going forward. It is best to employ preventative measures to avoid inadvertent disclosure and communications altogether. For instance, particularly sensitive discussions could take place via telephone. When sending an e-mail message to one’s client and to opposing counsel, you could consider sending the message to opposing counsel first and then forwarding a copy of that message to your client. And finally, consideration should be given to lawyers and their clients having conversations from the outset about preserving privilege and the need to take care in using the “reply all” function.