Careers

Diversity, Equity & Inclusion

Experience

Innovation

Interactive Maps

Locations

About

Pages

Meet our team of innovators
Ask us how we do it

Professionals

Insights

Services

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

Home | Thompson Hine LLP

Atlanta

Chicago

Cincinnati

Cleveland

Columbus

Dayton

Los Angeles

Minneapolis

New York

Silicon Valley

Washington, D.C.

<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-2376" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2016/02/Oops-300x225.jpg" alt="Oops" width="300" height="225">What&rsquo;s ethical may nonetheless not be a best practice &mdash; timely advice from the&nbsp;ethics committee of the New York State Bar Association, which weighed in&nbsp;recently with an <a href="http://www.nysba.org/CustomTemplates/Content.aspx?id=60757&amp;css=print">ethics opinion</a> on&nbsp;the practice of blind copying your client on e-mails you send to opposing counsel.
The inquiry to the NYSBA&rsquo;s Committee on Professional Ethics arose because the inquirer&rsquo;s opposing counsel apparently objected to the inquirer bcc-ing the client on e-mails that the two lawyers were exchanging.
Is a bcc &ldquo;deceptive&rdquo;?
The ethics committee noted that lawyers are required by the state&rsquo;s version of <a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_4_communications.html">Model Rule 1.4</a> to communicate regularly with the client, and to keep the client reasonably informed.
Against that imperative, the committee considered whether&nbsp;using a bcc as a handy way to keep the client informed was somehow &ldquo;deceptive&rdquo; within the meaning of New York&rsquo;s version of <a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct.html">Model Rule 8.4(c)</a>, which prohibits &ldquo;conduct involving dishonesty, fraud, deceit or misrepresentation.&rdquo;&nbsp; The committee concluded that because the lawyer is the client&rsquo;s agent, it is not deceptive for a lawyer to send to her own client copies of correspondence with opposing counsel, and opposing counsel may not reasonably assume that the lawyer will not share communications with her own principal, the client.
Therefore, bcc&rsquo;s are allowed even over the objection of opposing counsel, the committee said.
And, the committee said, there are good reasons not to copy the client on&nbsp;an e-mail that is directed to opposing counsel &mdash; which might&nbsp;at&nbsp;first suggest that a bcc is the way to go.&nbsp; First, a cc would reflect the client&rsquo;s e-mail address, which the client may not wish to provide to opposing counsel.&nbsp; A cc may also appear to invite opposing counsel to communicate directly with the client &mdash; although it would be improper for opposing counsel to do so.&nbsp; (<a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_2_communication_with_person_represented_by_counsel.html">Model Rule 4.2</a> bars communication with a represented party, and <a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_2_communication_with_person_represented_by_counsel/comment_on_rule_4_2.html">comment [3]</a> advises that the bar applies even when the represented party initiates or consents to the communication.)
Danger &mdash;&nbsp;&ldquo;Reply All&rdquo;
So, bcc-ing your client on e-mails you send to opposing counsel is not unethical, and it seems preferable to using a cc.&nbsp; But not so fast.&nbsp;&nbsp;The committee also said that there are reasons not to use either cc or bcc when copying e-mails to the client &mdash; namely the dreaded &ldquo;Reply All.&rdquo;&nbsp; Inadvertent use of the&nbsp;Reply All button has created embarrassment (and worse) many times.&nbsp; If you google &ldquo;Reply All embarrassments&rdquo; you will get hundreds of hits with titles like &ldquo;Nine reply-all e-mail disasters,&rdquo; and &ldquo;Reply-all horror stories:&nbsp; the button everyone loves to hate.&rdquo;
For lawyers, the stakes are, of course, even higher.&nbsp; As the committee pointed out, &ldquo;if the enquirer and opposing counsel are communicating about a possible settlement of litigation, the inquirer bccs his or her client, and the client hits &ldquo;reply all&rdquo; when commenting on the proposal, the client may inadvertently disclose to opposing counsel confidential information otherwise protected by <a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information.html">Rule 1.6</a>.&rdquo;
Bottom line:&nbsp; the committee advised that you can bcc your client on e-mail to opposing counsel even over opposing counsel&rsquo;s objection &mdash; but there are good reasons to take the extra step to forward that correspondence to the client later, and to stay off of that bcc button.
&nbsp;

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Don’t bcc your client on e-mails to opposing counsel, NY state bar advises