Ethics Spotlight: ‘Implied Consent’ Under the No-Contact Rule

December 2022

By Dianne Jackson McLean

In the context of the No-Contact rule[1], an attorney sending an email or text which includes her client to another attorney may provide implied consent to the receiving attorney to hit the “Reply All” button, thereby permitting the receiving attorney to communicate directly with the represented client on the email chain. This is the conclusion reached by Formal Opinion 503 issued on November 2, 2022, by the Standing Committee on Ethics and Professional Responsibility of the American Bar Association (the “ABA Opinion”). The ABA Opinion poses the issue as follows: “When a lawyer (“sending lawyer”) copies the lawyer’s client on an electronic communication to counsel representing another person in the matter (“receiving counsel”), the sending lawyer creates a group communication. This group communication raises questions under the ‘no contact’ rule because of the possibility that the receiving counsel will reply all, which of course will be delivered to the sending lawyer’s client.”[2]   This latter email from the receiving lawyer, under the plan language of ABA Model Rule 4.2, appears to violate the rule, as the receiving lawyer is, by virtue of copying the sending lawyer’s client, communicating with that client. The ABA Opinion, however, concludes that “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, subject to certain exceptions ….”[3]

The ABA Opinion includes certain statements that are not supported by the rules or case law, but appear to be based on what is considered “normal practice.” Although I agree with the conclusion of the ABA Opinion, I am not convinced that a sending attorney’s email that includes the client establishes “implied consent” as provided in Model Rule 4.2, such that the receiving attorney can send a “Reply All” email in response.

Model Rule 4.2 provides: “In representing a client, 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.” Paragraph (a) of the California Rule 4.2 of the California Rules of Professional Conduct (CRPC) is nearly identical to Model Rule 4.2. It provides: “In representing a client, a lawyer shall not communicate directly or indirectly 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.” The only difference is that the California rule adds the phrase “directly or indirectly” and moves the phrase “authorized … by law or a court order” to a separate paragraph. As I will discuss below, despite the near identity of the rules, California has taken a substantially more nuanced approach to determining when a lawyer might be held to have “impliedly consented” to a communication with the lawyer’s client by a lawyer representing a different person in the same matter. 

The ABA Opinion provides several reasons to support its conclusion. The first is that Rule 4.2 permits lawyers to communicate with a represented person with the consent of that person’s lawyer and that such consent does not have to be expressed but can be implied. Since it is “common to reply all to emails,” the sending attorney should be aware of this practice, and therefore know that their conduct in sending the email constitutes implied consent to any receiving lawyer to reply all to the email, since the sending attorney knows that there are other parties and attorneys receiving the email.[4] It appears that with somewhat cursory reasoning, the ABA Opinion paints with a broad brush a rule that is neither in the black letter of the rule nor contemplated nor explained in the rule’s commentary.

It is questionable whether sending an email as a group communication, in and of itself, is enough to constitute “implied consent” under Rule 4.2 of CRPC. As noted, California has taken a more nuanced approach that recognizes the specific context of a communication is critical in determining whether a lawyer representing a client has provided implied consent to another lawyer in a matter to communicate with the sending lawyer’s client. In California State Bar Ethics Opinion 2011-181, the State Bar’s Committee on Professional Responsibility and Conduct concluded that whether implied consent can be established under former Rule 2-100(A)[5] should be based on a consideration of certain factors, none of which alone is conclusive.[6]

Such factors include:

  • whether the communication is within the presence of the represented person’s attorney;
  • the prior course of conduct between counsel;
  • the nature of the matter;
  • how the communication is initiated and by whom;
  • the formality of the communication;
  • the extent to which the communication might interfere with the attorney-client relationship;
  • whether a common interest or joint defense privilege exists between the parties;
  • whether the other attorney will have a reasonable opportunity to counsel the represented person concerning the communication (either contemporaneously or immediately following the communication); and 
  • the instructions of the represented person’s attorney.

Under the approach set forth in the State Bar opinion, merely copying the client in one-group email should not by itself relieve the receiving attorney of his ethical obligation to obtain the sending attorney’s express consent, absent the presence of some of the other factors, before he communicates directly to the entire group, including the sending’s attorney client.

The ABA Opinion’s second reason for finding that consent is implied is based on the purported logic that somehow, merely by sending a group email which includes the sending attorney’s client, the sending attorney has brought the consent issue into question, and the burden is on the sending attorney to clarify whether or not the email to the entire group constitutes implied consent for the receiving attorney to send a “reply all” email. The ABA Opinion attempts to explain: “If the sending lawyer would like to avoid implying consent when copying the client on the electronic communication, the sending lawyer should separately forward the email or text to the client. Email and text messaging replies are often generated quickly, and the client may reply hastily with sensitive or compromising information. Thus, the better practice is not to copy the client on an email or text to receiving counsel.”[7]

The ABA Opinion then jumps to the conclusion that a group communication sent by the sending lawyer creates a presumption of “implied consent” that can be overcome by the sending lawyer expressly stating that no consent is provided.[8] The ABA Opinion also states that the “presumption applies only to emails or similar group electronic communications, such as text messaging, which the lawyer initiates.” There is no support provided for this statement. The distinction is not provided in the ABA rule or referenced to any ethics opinion. Rather, the opinion simply carves out this “implied consent” presumption for texts and emails, then conveniently excludes other modes of communication, such as “traditional paper letters” from the reach of this novel presumption. The opinion suggests that simply by virtue of the immediacy of the communication mode, and the possibility that a receiving lawyer might rashly also hit “reply all” (or have “reply all” set as the default in the lawyer’s email program), the sending lawyer requires absolution from violating the rule. The reference to the client’s action[9] is also misplaced in the ABA Opinion, as Rule 4.2 is primarily concern with the “duties of attorneys, not with the rights of parties.”[10]

Although it is a common practice for attorneys to hit the “Reply to All” button on emails in response to an email received from an attorney which includes the sending attorney’s client, that action by itself may not actually provide the “implied consent” as outlined in the ABA Opinion, and permit the receiving attorney to communicate directly to recipients of the email, including the sending lawyer’s client. The better practice, as provided in the ABA Opinion, is for the sending attorney to separately forward a copy of the email or text to their client, or informed the receiving attorney in advance that the email or text does not constitute consent to a “reply all” communication.[11]

[1] Rule 4.2 of the ABA Model Rules of Professional Code, or Rule 4.2 of the California Rules of Professional Conduct.  For the purpose of this Article, all references to the Rules shall be to the ABA Model Rules of Professional Conduct, unless indicated otherwise.

[2]  ABA Formal Opn. 530 (2022), page 1.

[3] Id. at page 2.

[4] ABA Formal Opn. 503, at p. 2-3. The opinion cites to Model Rule 1.1, Cmt. [8], as support for this proposition (“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology[.]”) Compare CRPC 1.1, Cmt. [1] (“The duties set forth in this rule include the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.”)

[5] Former Rule 2-100(A) referred to “party” rather than “person” but otherwise is substantially the same as current CRPC 4.2.

[6] See also Tuft, Peck & Mohr, Cal. Prac. Guide: Professional Responsibility §§ 8:737-8:738 (The Rutter Group 2021) (“no single factor is determinative; examination of all facts and circumstances regarding a communication with represented person is required; see CRPC 1.01(f)-person’s knowledge may be inferred from circumstances.”)

[7] ABA Formal Opn. 530 (2022) at page 2.

[8] page 4.

[9] Id at page 3.

[10] “The client cannot waive the protection of the no-contact rule.  See United States v. Lopez, 4 F.3d 1455 (9th Cir. 1993) (mistake to speak of “waiving” rights under anticontact rule; rule is “fundamentally concerned with the duties of attorneys, not with the rights of parties.”); Seven Edition-Annotated Model Rules of Professional Conduct, Ellen J. Bennett, Elizabeth J. Cohen and  Martin Whittaker, Center for Professional Responsibility, American Bar Association, 2011, page 407.

[11] ABA Formal Opn. 530(2022) at page 5.

Dianne Jackson McLean is a partner at the law firm of Goldfarb & Lipman LLP, where she is a transactional attorney, representing public housing authorities, cities, and other government agencies in complex mixed finance affordable housing transactions and economic development matters. Ms. Jackson McLean also provides advice to her firm on ethics. Ms. Jackson McLean is the former chair and member of the Bar Association of San Francisco, Legal Ethics Committee, and a member of the California Lawyers Association, Ethics Committee. The views expressed are the author’s own, and do not express the opinion of the California Lawyers Association, Ethics Committee.