Best practice is to <i>blind</i> courtesy-copy clients on emails to opposing counsel

I have long believed it to be best practice to courtesy copy clients on all emails one sends in that client’s case.  Doing so helps one comply with Rule 1.4(a), specifically Rule 1.4(a)(3), of the South Carolina Rules of Professional Conduct, which requires a lawyer to “keep the client reasonably informed about the status of the matter.”

A November 2, 2022, American Bar Association formal opinion holds that courtesy copying clients on emails to opposing counsel indicates an “implied consent to opposing counsel responding with a “reply all.”  The opinion begins:

In the absence of special circumstances, lawyers who copy their clients on an electronic  communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s “reply all” to the communication. Thus, unless that result is intended, lawyers should not copy their clients on electronic communications to such counsel; instead, lawyers should separately forward these communications to their clients. Alternatively, lawyers may communicate in advance to receiving counsel that they do not consent to receiving counsel replying all, which would override the presumption of implied consent.

Like most attorneys I practice against, I have been guilty of accidently communicating with opposing parties by responding “reply all” to an opposing counsel’s email.  And I’ve never considered it anything more than an innocent mistake if opposing counsel did likewise (as opposed to opposing counseling replying directly to my client—which has never occurred in all my years of practice).  However, this ABA explicitly authorizes a “reply all” response and I never intend opposing counsel to be directly communicating with my clients.

For contentious practitioners the new best practice is to blind courtesy copy clients when sending emails to opposing counsels.