Rule 7.2-6 of the NSBS Code of Professional Conduct states that subject to rules 7.2-6A and 7.2-7, if a person is represented by a lawyer in respect of a matter, another lawyer must not, except through or with the consent of the person’s lawyer: (a) approach, communicate or deal with the person on the matter; or (b) attempt to negotiate or compromise the matter directly with the person.
This is referred to as the no contact rule and a similar provision is found in the ABA Model Rules of Professional Conduct.
Recently the ABA issued a formal opinion recommending that lawyers refrain from including their clients when sending emails to opposing counsel. The opinion states that:
…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.
The ABA concluded that subject to certain exceptions which are listed in the opinion,
…given the nature of the lawyer-initiated group electronic communication, a sending lawyer impliedly consents to receiving counsel’s “reply all” response that includes the sending lawyer’s client…
Though this is not to suggest that such a position would be taken here, out of an abundance of caution, if a lawyer wants its client to see what the lawyer is sending to opposing counsel, the client should be sent the correspondence separately or by blind copy. But as blind copying the client is often misused, separate correspondence seems the better approach.
LIANSwers v78, November 2022