CBA Record January-February 2023

PRACTICAL ETHICS BY TRISHA RICH The No-Contact Rule: ABAGives (More) NewGuidance

an adverse party on unrelated topics. The ABA also provides that physical letters that copy clients are not the same as electronic communications, and in those instances, implied consent has not been provided for opposing counsel to, for example, send back a letter and copy the adverse party. The ABA’s new formal opinion con trasts with existing guidance in Illinois. In October 2019, the Illinois State Bar Association issued Opinion No. 19-05, which concluded that without consent, it is a violation of Rule 4.2 for a lawyer to copy another lawyer’s client on a response email, even if the client was copied on the initial communication. In its opinion, the ISBA reasoned that the entire purpose of Rule 4.2 would be thwarted if the “mere copying” of one’s own client could be interpreted as consent for opposing coun sel to respond in kind. The ISBA opinion concluded that instead of just assuming that the sending lawyer was consenting to a communication with their client, the lawyer receiving the communication should make a good faith effort to deter mine whether consent was provided – which could require the receiving lawyer to ask the sending lawyer who copied their client. A few notes to remember. First, both ABA Formal Op. 503 and ISBA Opinion No. 19-05 are persuasive, advisory author ity in Illinois, and not binding. Second, the most prudent course of action for anyone who wants to avoid ambiguities here is to simply not copy your own client on correspondence to opposing counsel. The better course of action in most cases will be to forward your client the com munication after it has been sent. Finally, remember that consent trumps all. Attor neys can make their consent on this issue clear at the beginning of or during the matter, which can alleviate any misunder standings about implied consent.

I n the last issue of The Record, I wrote about the ABA’s recent ethics opinion, Formal Op. 502, which examined the prohibition in Rule 4.2 (the “no contact” rule) on attorneys communicating with adverse parties. I concluded that this pro hibition extends to pro se attorneys. That was the first ABA ethics opinion in well over a decade that substantively examined obligations under Rule 4.2. Imagine my surprise when, on November 2, the ABA followed Formal Op. 502 with another ethics opinion related to conduct under Rule 4.2: Formal Op. 503. I didn’t expect to write about this Rule twice in a row, but I’m glad to have the chance to discuss a topic that arises fre quently, especially for transactional attor neys. As a reminder, recall that Illinois Rule of Professional Conduct 4.2 is iden tical to ABA Model Rule 4.2 (although IRPC 4.2’s comments vary slightly from the Model Rule’s – mostly related to Illi nois’ limited scope representations – these variations are not significantly relevant to Formal Op. 503). Rule 4.2 provides that, in representing a client, a lawyer cannot communicate with a represented person about the subject of the representation without receiving the consent of that per son’s lawyer (absent some other law or court order that would authorize such a communication).

Formal Op. 503 examines a situa tion that occurs frequently: for example, where a lawyer sends an email or text to opposing counsel and copies her own client on that email or text, has she pro vided implied consent under Rule 4.2 for opposing counsel to now “reply to all” and thus communicate with the first lawyer’s client? ABA Formal Op. 503 says yes, that by copying her own client, the lawyer has now impliedly consented to opposing counsel including the client on responses. According to the ABA, when a lawyer includes her client on an email to oppos ing counsel, she has created a “group com munication” and has given her implied consent for opposing counsel to also com municate in that group communication. The ABA compared such a “group com munication” to a client joining a phone call with their lawyer and opposing coun sel, and concluded that such situations give opposing counsel the impression that communications in that context are per missible and perhaps even encouraged. However, this principle is not with out limits. The ABA notes that, unless explicitly agreed otherwise, the implied consent is limited to the specific topics in the communication, and that oppos ing counsel cannot reasonably conclude that such a communication allows oppos ing counsel to send communications to

Trisha Rich is a litigator and legal ethicist at Holland & Knight and the President of the Association of Professional Responsibility Lawyers, the national bar association for legal ethicists. Youcan reachher at trisha.rich@hklaw.com, on LinkedIn at linkedin. com/in/trisharich, or on Twitter @_TrishRich.

42 January/February 2023