Do Not BCC Your Client When Emailing Opposing Counsel
The New York State Bar Association recently released an ethics opinion that, at first, blush, seems unnecessary: it warned you, gently, not to bcc your client on correspondence to opposing counsel. This seems rather far afield for an ethics opinion, particularly as that bcc is often a convenient way to keep your client apprised of what you are doing (and a regular cc gives your client's email address to opposing counsel, which you also do not want.)
The ethics opinion does conclude that neither a cc nor a bcc raises any ethical concerns as such. What the opinion is really warning you about is something we should all be terrified of, lawyers or no: the horror of an incorrect use of "reply all." Your client isn't likely to inadvertently create an email storm like the one that hit Thomson Reuters employees, where 33,000 (!) people were caught in a "reply all" chain, but a client's careless use of "reply all" can create a different sort of disaster.
For lawyers, the stakes are, of course, even higher. As the committee pointed out, "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 "reply all" when commenting on the proposal, the client may inadvertently disclose to opposing counsel confidential information otherwise protected by Rule 1.6."
The ethics opinion recommends solving this by just taking the extra step and forwarding an email to your client rather than copying them, blind or otherwise. That is an excellent idea, not only because it means you avoid the "reply all" possibility. Forwarding allows you to provide your client with a couple sentences of context or explanation about that communication with opposing counsel. So there you have it—(at least) two good reasons to make a point of forwarding emails instead of copying your client.
Featured image: "Speech bubble illustration of information technology acronym abbreviation term definition BCC Blind Carbon Copy" from Shutterstock.
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