“The Love Letter,” Jean Honoré Fragonard (French, Grasse 1732–1806 Paris); The Metropolitan Museum of Art, New York

“The Love Letter,” Jean Honoré Fragonard (French, Grasse 1732–1806 Paris); The Metropolitan Museum of Art, New York

Nope. And that’s just one reason why a proposed ethics opinion about ER 4.2 is wrong.

(If, after reading this and the relevant documents, you agree, the comment period is open until Monday, August 30, 2021, and you can easily comment just by sending an email. Here’s the link.)

The Arizona Supreme Court’s Attorney Ethics Advisory Committee Ethics has floated for public comment a draft opinion that concludes that if a lawyer sends opposing counsel an email and copies their client on that email, the lawyer is “conclusively” consenting that opposing counsel may copy the lawyer’s client on opposing counsel’s email response. But if the email message is used as a delivery vehicle for a letter, the sending lawyer is not giving implied consent to opposing counsel to respond and copy the sending lawyer’s client on that response.

If you’re at all familiar with ER 4.2, then you, like me, might be scratching your head. Aren’t emails and paper letters simply different ways of communicating? And doesn’t ER 4.2 prohibit a lawyer communicating with a represented person unless that person’s counsel consents?

Draft EO-20-0011 proposes to adopt the reasoning of recent New Jersey Advisory Committee on Professional Ethics Op. 739 (March 10, 2021), which concludes that email is more like a conference call — a call that includes lawyers and clientsthan a written communication. That NJ opinion also deemed clients who are copied on emails “mere bystanders to the group email conversation between the lawyers.”

If draft EO-20-0011 is adopted, the following scenarios show how confusing it would be to apply ER 4.2: 

  • Larry Lawyer sends, by postal mail or fax, a long, substantive letter to Annie Attorney about the matter on which they are representing opposing clients. On that letter, Larry indicates that he is copying his client, Curt. Because Larry sent a letter to Annie, she can’t respond to Larry and copy Curt. This applies a “universally accepted” tenet that Larry’s action – cc’ing his client on a letter or other document – does not constitute implied consent that opens the door to Annie sending a copy of her response to Larry’s client, Curt.

  • If, instead of sending that long, substantive letter by mail or fax, Larry converts it to a pdf and emails the pdf to Annie, Annie also may not copy Larry’s client, Curt, on her response because Larry’s email to her was just the mechanism by which he delivered his letter, and he cc’d Curt on the letter, not on the email.

  • But if Larry cc’s Curt on that email to Annie conveying the pdf of the long, substantive letter, apparently, Annie could “reply all,” thus copying Curt on her response, because Larry would be deemed to have impliedly consented by cc’ing Curt on the email.

  • And if, instead of going to the trouble of formatting a long, substantive letter, Larry puts the same content into the body of an email to Annie and copies Curt on that email, then Annie apparently also may “reply all,” thus copying Curt on her substantive response. Larry would be deemed to have impliedly consented by cc’ing Curt on the email – the email that conveyed the exact same content the physical letter contained.

Rather than making life easier for lawyers, an opinion along these lines would complicate things immensely.

Here’s the comment Nancy Greenlee and I filed objecting to the draft. Our comment more fully analyzes the draft and explains our opposition.

If the AEAC sends this draft to the Supreme Court, let’s hope the Court (which has final say over ethics opinions) gets that attempting to distinguish emails…from letters…from emails used as delivery vehicles for letters…is just not workable in every day lawyer life and that the result is contrary to the express language of ER 4.2.