Email Etiquette 101: Why you should never CC your client on emails to Opposing Counsel.
Email is a convenient and efficient way to communicate and get legal work done, and these days, almost essential with the upsets in the mail service, the pandemic and WFH (work from home) world we now live in. Email is also a great way to keep your clients informed and up to date on what is going on in their cases.
With that said, it is very tempting to “cc” (copy) your client on an email to opposing counsel. Since we don’t send letters on letterhead through the mail anymore, and therefore don’t have our secretaries send photo copies of those letters in the mail to keep clients informed, we have now moved to the quicker, more convenient, more efficient almighty email.
However, I respectfully submit here, why you should NEVER cc your client on an email to opposing counsel. Yes, it takes 30 extra seconds to go to your “sent” folder as soon as you send your email to opposing counsel and forward that to your client, and yes, our time is expensive, but that extra 30 seconds is billable to the client and saves in the long run… And yes, you do have a duty to keep your client informed… however, the rule is within a “reasonable” time, not “immediate” or “in real time.”
Here is why: When you “cc” your client on an email to opposing counsel, one of two things could happen that are really not good, either for your opposing counsel (who is your co-worker, like it or not, and will be along for the next sometimes 30-40 years of your legal career, and long after any client has come and gone – which may be worth offering even the slightest modicum of civility to – even if you don’t like the color of their tie today).
1) Opposing counsel clicks “Reply All” and sends a response unknowingly to your client.
a. This also puts your co-worker/opposing counsel in the precarious situation of having contact directly with a party known to have counsel.
i. Michigan Rules of Professional Conduct, Rule: 4.2 Communication With a Person Represented by Counsel (a) In representing a client, a lawyer shall not communicate about the subject of the representation with a person whom the lawyer knows to be represented in the matter by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
ii. One might presume or argue if the client’s own lawyer cc’ed them, that is implied consent… but maybe not… I don’t want to have to check with the ethics board on this, do you?
b. Yes, it is the opposing counsel’s responsibility to make sure they are not doing this, but when there are 6 emails addresses and you want every paralegal, secretary, partner, associate attorney in your entire firm on all emails… isn’t that a bit unfair to ask opposing counsel to filter through all that, each and every time, to recognize and pull out your client’s solitary email address? Be courteous please.
2) Worse: YOUR client clicks “Reply All” and makes a nasty, rude, or other off-color comment or writing you would NEVER want opposing counsel to see… given opposing counsel more fodder in court. Your client just torpedoed your case (anyone else in family law here???).a. Although, I must say, I do appreciate hearing when the opposing party dislikes me… seems it is a gold star that I am doing my job right...
For these reasons, I beg, please, stop cc’ing your client on emails to opposing counsel.
About the author: Lori B. Schmeltzer is the owner of Schmeltzer Law PLLC, Traverse City's Divorce Lawyer (www.tcdivorcelawyer.com). Lori practices primarily in family law, and has a background in business management and marketing, having earned her Bachelor's in Business Administration from Walsh College in Troy before attending law school. She has served on the GTLA board for two years, is an active member and committee chair with the Traverse Area Chamber of Commerce's FUSE (formerly Young Professionals) organization, and is a proud Rotarian.