Most professionals have witnessed or endured a “reply all” blunder—where someone in a group email mistakenly hits “reply all” and broadcasts a private message to the larger group.

Typically, the mistake will simply elicit a few chuckles and eye rolls, but in the legal field, it can present risks, particularly when attorneys include their clients on email communications with counsel for other parties.

Here are some simple, practical steps lawyers can take to help mitigate these risks.

Consider the Risks

One risk of including a client on an email communication with other counsel is that it divulges the client’s contact information and could expose the client to direct communications from receiving counsel.

Generally, lawyers are prohibited under Rule 4.2 of the Georgia Rules of Professional Conduct from directly communicating with a represented person about the subject of the representation. One exception to that rule, however, is where the person’s lawyer consents to the communication.

Does copying a client on an email, by itself, imply consent to a “reply all” response directly communicating to an otherwise represented client? American Bar Association (ABA) Formal Opinion 503, which was mentioned in a recent ALM article, concluded that it does, reasoning that including a client on a group email is similar to including a client in a videoconference, telephone call or in-person meeting with another counsel.

In all of these situations, communication among the participants is expected and encouraged. The opinion specifically notes the norms of email communications, including that “reply all” is often an acceptable—even default—response.

Some states have concluded that consent is not implied solely by including a client on an email, and that it is necessary to consider a host of other factors, including the parties’ prior course of conduct, the nature of the matter, how the communication is initiated and by whom, and the formality of the communication, among others.

Regardless, including a client on an email poses some degree of risk that the client will be exposed to a direct communication from other counsel, which, depending on the circumstances, could harm the client’s interests or undercut the lawyer’s role as a buffer for the client.

Another potentially more damaging risk of including a client on an email communication with other counsel is the risk that the client will “reply all.” For example, the client might intend to send a direct privileged communication, but instead reply to the entire group, potentially risking waiver of the privilege and divulging damaging information.

This risk is more pronounced in the context of a group email, given how quickly and easily a client can reply all without first receiving the advice of counsel.

Be Diligent With Disclaimers

One way to mitigate risk is through the use of disclaimers. Many law firms already use email signature disclaimers, containing a list of boilerplate disclaimers and warnings at the bottom of every email. These types of disclaimers can offer some protection, but the protection is likely not absolute.

Indeed, the automatic use of an email signature disclaimer on every email can actually undercut its validity. Thus, some attorneys will take care to additionally mark emails that they send to their clients as an “attorney-client communication.”

Although such a designation is not necessary under the law to invoke the protections of the privilege, it can serve as a warning to others who inadvertently receive the communication.

In emailing opposing counsel, if the decision is made to copy the client (notwithstanding the risk), the sending lawyer could note that including the client in the communication does not signify consent to a reply all or to direct communication between the client and opposing counsel.

Consider Whether to Ditch the Group Email

Another risk-mitigation strategy is to ditch the group email altogether and maintain separate lines of communication with the client and with other counsel. For example, rather than Cc’ing a client on an email with other counsel, a lawyer could send the email only to counsel and separately forward that email to the client.

ABA Formal Opinion 508 recommends this practice because it avoids the “reply all” pitfalls described above, but it’s important to note that this is not a hard and fast rule. There are a variety of circumstances where it may be appropriate to include a client on an email with other counsel.

For example, in certain transactional practices, it is common to include clients on such communications to ensure they are directly involved in the negotiations and aware of developments in the deal. In any type of practice, it is helpful to consider the specific circumstances—such as the sophistication and experience of the client, the content of the communication and the likelihood of continued discussion, among others—in deciding whether to initiate a group email.

Get Tech Support

Another way to reduce risk of “reply all” emails is to implement a technological buffer. For example, certain email software allows users to move or delete the “reply all” button.

Some programs or add-ins automatically produce a warning before a “reply all” email is actually sent. That simple reminder—one last “are you sure?” check—can help avoid accidental replies.

Talk It Out

Lawyers can also have conversations with clients about these risks. Lawyers can urge their clients to be cautious or to take some of the risk management steps discussed above. A candid discussion can also be helpful to address why the lawyer recommends against sending group emails copying the client and opposing counsel (if that is the lawyer’s recommendation).

The more a client understands about these risks, the better equipped they will be to avoid them.

Shari L. Klevens is a partner at Dentons and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons’ global insurance sector team.

Alanna Clair is a partner at the firm and focuses on professional liability defense and complex insurance defense.

Klevens and Clair are co-authors of “Georgia Legal Malpractice Law” (2022), “District of Columbia Legal Malpractice Law” (2021) and “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance” (2013).

Tim Larsen, a managing associate at Dentons, contributed to this column.