I’ve written before about the importance of communication—keeping your clients informed is essential. But is it possible to have too much of a good thing? A recent ethics opinion from the American Bar Association suggests it might be—with caveats.
Emails and Consent
One of the ways that lawyers and other professionals keep clients in the loop is by copying them on email and other correspondence. This is a safe bet with written letters—you can easily cc and bcc clients by popping a copy of a letter or other documentation in the mail.
But in a more paperless society, we depend on email. And copying your clients on emails can be complicated—especially with the “reply all” feature. A recent ethics opinion warns lawyers to pause before copying clients on emails or texts to opposing counsel since the results imply consent to receiving a “reply all” response.
ABA Model Rule 4.2
Here’s why that matters. There’s a rule—ABA Model Rule 4.2—called the “no-contact” rule. It states, in part, that “a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”
In other words, an attorney can’t communicate with a client who is represented without prior consent. Consent has traditionally been reasonably explicit. For example, I’ve represented clients where we’ve given permission for counsel to direct certain deliverables to the client instead of to my office for efficiency.
Formal Opinion 503
But in Formal Opinion 503, the ABA Standing Committee on Ethics and Professional Responsibility takes the position that consent may be implied—and sending an email or text to opposing counsel and copying the client does just that. The opinion suggests it’s similar to adding the client to a video conference, telephone call, or meeting with opposing counsel.
The opinion also notes that “reply all” may be a default setting for specific mail platforms—those adjustments are easy to make in mail platforms such as Gmail and Outlook. And as much as many of us dread it, “reply all” responses have become the norm for some folks who use email.
All of this means, according to the opinion, that it’s not unlikely that email and text correspondence from opposing counsel could be directed toward a represented client. The opinion says that the burden of determining consent and who might be included in a response should not be on the recipient but on the sender. But there’s a distinction between those communications and regular mail—there is no presumption of consent regarding paper letters.
Any presumption of consent can be overridden by telling counsel in advance that there is no consent. And when it comes to emails and texts, to avoid a potentially undesirable result, the ethics committee suggests that lawyers should not copy the client and should separately forward communications to clients.
I think that’s good advice all the time. We know that the “reply all” button tends to be an accident waiting to happen, even when not communicating with counsel. With that in mind, here are a few other email tips to consider.
Be More Efficient With Your Time
A recent study from Otter.ai and Steven G. Rogelberg, professor of organizational science, management at UNC Charlotte, suggested that unnecessary meetings were costing companies time and money. The survey found that companies waste about $25,000 per employee by scheduling unnecessary meetings. And professionals spend over one-third of their working hours in meetings—even when they want to decline. If a meeting is simply a forum to recap news or offer information, consider boiling it down to an email.
Use a Smart Subject Line
Not all emails are created equal. While I use filters to sort out the junk and the spam, my inbox is often overcrowded. A subject line that is short and to the point helps me determine the importance and time sensitivity. The same goes for opposing counsel and for clients. And when you’re working on a particular matter, using a smart subject line can help you sort and file it for later. Whatever you do, don’t leave the subject line blank, as it may go straight to junk mail, and don’t use confusing language that implies it’s related to something else. “Money matters” sounds like spam, not a client message.
Keep It Easy to Understand
My time is valuable, and so is yours. Show respect for others’ time by keeping your email brief and easy to read. Emails to clients and advisers should appear professional—use spaces between paragraphs and don’t ignore punctuation. I like to use bullet points to emphasize important points, and I often bold action items to call attention to them. Finally, don’t forget to spellcheck. There’s a big difference between martial and marital, and sea sponge and sua sponte.
Ditch the Disclaimer
Lawyers, CPAs, and other tax and accounting professionals love a good disclaimer. The IRS used to require tax practitioners to warn clients about written advice related to reliance or covered opinions—generally, a recommendation that a client might win on a tax issue. As a result, attorneys and other tax professionals, including those who never issued tax advice, started tacking Circular 230 disclaimers, such as the one below, onto emails. And those disclaimers got longer.
The IRS, acting on comments received from practitioners, decided enough was enough. In 2014, the IRS made final proposed Regulations that eliminated section 10.35—the opinions clause—and replaced it with more practical requirements in section 10.37. The IRS noted that the change meant Circular 230 disclaimers popping up on emails and other documents could be eliminated.
Not everyone got the memo. In 2014, Karen Hawkins, then-acting director of the Office of Responsibility at the IRS, announced that her office would send letters asking practitioners to stop using Circular 230 disclaimers, saying the disclaimer is not required. ”We do not require that language after last week,” Hawkins explained.
Eight years later, we’re still seeing those disclaimers, some of which have add-ons consisting of several paragraphs. I promise that you can really stop now.
Communication is Key
It’s important to communicate effectively with clients, colleagues, and, importantly, any opposing parties. But that doesn’t mean you should simply add a “cc” or let all of your thoughts tumble onto an email. Be thoughtful about your communications and treat them with care. As the saying goes, “Dance like no one is watching, but email like it may one day be read aloud in a deposition.”
This is a regular column from Kelly Phillips Erb, the Taxgirl. Erb offers commentary on the latest in tax news, tax law, and tax policy. Look for Erb’s column every week from Bloomberg Tax and follow her on Twitter at @taxgirl.
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