Wednesday, November 13, 2013

New Ethics Opinions: Email Edition

  • "On October 25, 2013, the North Carolina State Bar Council adopted a formal ethics opinion that impacts how North Carolina lawyers respond to emails with the 'Reply All' option."
  • "The formal opinion, titled “Copying Represented Persons on Electronic Communications,” addresses two specific inquiries regarding electronic communications with persons represented by opposing counsel."
  • "The first inquiry, and its answer, have not been controversial: a lawyer cannot respond to an email from opposing counsel by adding and thereby, copying the opposing counsel’s client on the email communication unless the lawyer receiving the email has consented to the communication to the client. Most lawyers would agree that this opinion is an appropriate application of Rule 4.2(a) of the Rules of Professional Conduct..."
  • "The second inquiry, which does not evoke the same consensus among lawyers and addresses the “Reply All” feature, is: Would the answer change if Lawyer A is replying to an electronic communication from Lawyer B in which Lawyer B copied her own client? Does the fact that Lawyer B copied her own client on the electronic communication constitute implied consent to a 'reply to all' responsive electronic communication from Lawyer A?"
  • "The short answer from the Ethics Opinion is that it depends on a good faith analysis of the facts and circumstances whether consent to the communication can be implied."
  • "Ethics rules permit a law firm to look through incoming e-mails addressed to a former partner to see what should be done with them, the Philadelphia bar's ethics committee said. [full opinion]"
  • "A departed lawyer may not insist that the law firm set his e-mail account to automatically bounce back incoming e-mails to the sender, the panel said. On the other hand, it added, any e-mails the firm reads that are clearly meant for the lawyer must be forwarded to him."
  • "The managing partner of a law firm contacted the ethics committee after disputes arose between the firm and a partner who left to start his own practice, taking some clients with him. One area of disagreement centered on the firm's handling of the former partner's e-mail."
  • "Some degree of interaction with the substance of the messages is necessary as a practical matter so that the firm can sort out its responsibilities to current clients, former clients, clients who have elected to follow the ex-partner, and third parties, it explained."

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