|Photo credit: Prad Prathivi @ Amodica:/ Foter|
The State Bar has since reconsidered, and recently published revisions to the proposed opinion. The opinion now reads:"The second part of the Opinion addresses the issue of implied consent by asking whether a lawyer may "reply to all" when he or she has received an email message on which opposing counsel has copied his or her own client. The answer, again, is 'no.' The Opinion completely rejects the concept of "implied consent.' In concluding consent must be explicit, the State Bar considered recent opinions of the state bars of New York and California."
"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."Therefore, while the best practice is to obtain express written consent before copying an opposing party on an email to opposing counsel, it may be possible to correctly infer consent from the facts and circumstances.
Transactional lawyers, who often copy one another's clients on emails when putting together deals, will likely be relieved by the flexibility of the revised opinion. In my view, this is a prudent decision by the State Bar Ethics Committee, and I commend the Committee for its willingness to listen to the commenters and take a measured approach to this matter.
You can read the entire revised opinion here.