The Pitfalls of Replying To All

As you know, we here at Abnormal Use love writing and blogging, so much so that our editor Jim Dedman is now contributing posts to other online venues.  Recently, his piece, “The Pitfalls of Replying to All,” was published by DRI Today.

We’ve written about selfies, and we’ve even written about ill-advised Facebook posts by lawyers. But today, we discuss the most dreaded technological faux pas of all: the reply to all.

Here’s the first two paragraphs of the article:

During those incredibly busy days all lawyers face, it is important to be mindful of the recipients of any electronic communication. There may be nothing more perilous than the “Reply to All” function on one’s email service; so dangerous is the function that the Wall Street Journal has called it “the button everyone loves to hate.”

Certainly it is now an ancient cliché to exclaim that technology has dramatically transformed the way we practice law. Owing to the daily advances in technology, courts and state bars continue to address emails and broader digital communications. For instance, in October, the North Carolina Bar Council issued a formal ethics opinion, the 2012 Formal Ethics Opinion 7, to address the issue of whether a lawyer commits an ethical breach if he or she, in response to a missive from opposing counsel, “replies to all” when that lawyer knows that the opposing counsel’s client was copied on the original email. The North Caroling Bar Council found that this “reply all” may not be an ethical breach, but that it is based on a fact intensive, totality of the circumstances analysis. In essence, the Bar Council found that “the fact that a lawyer copies his own client on an electronic communication does not, in and of itself, constitute implied consent to a ‘reply to all’ responsive electronic communication”). See id. In so doing, the Bar Council noted, “The fact that Lawyer B copies her own client on the electronic communication to which Lawyer A is replying, standing alone, does not permit Lawyer A to ‘reply all.’ While Rule 4.2(a) does not specifically provide that the consent of the other lawyer must be ‘expressly’ given, the prudent practice is to obtain express consent. Whether consent may be ‘implied’ by the circumstances requires an evaluation of all of the facts and circumstances surrounding the representation, the legal issues involved, and the prior communications between the lawyers and their clients.” See id.

For the full article, please see here.

Comments are closed.