The Dangers of CC and BCC for Lawyers
I’d like to talk about the risks of ccing or bccing your clients on emails. I see this scenario quite a lot and as an ethics lawyer, I would like to explain to you why it is a problem.
If you cc your clients on an email, you are essentially telling opposing counsel it is ok if he communicates with your clients when he includes you in emails. You also never know what your clients will say in response to opposing counsel. When you cc your clients, you completely lose control of the conversation. This is not something you want to happen.
If opposing counsel ccs his clients on an email you might think you have permission to communicate in this fashion. But if you write something that opposing counsel doesn’t like, he could still end up reporting you to disciplinary counsel and you could end up having to explain why you directly communicated with opposing clients. Now, will the disciplinary board feel that you did anything wrong if you directly address the clients given opposing counsel’s inclusion of them on the email? That is hard to say. But is it worth the risk? I would say no.
Here is what I suggest:
- Do not cc your clients on emails. Forward them after the fact instead.
- If opposing counsel ccs his clients, remove them before you respond.
If you do these two things, you will avoid any risk of opposing counsel directly communicating with your clients, you won’t risk directly communicating with opposing clients and you will maintain control of the communications your clients see. After all, if opposing counsel says something which inflames your clients, it could cause serious problems with the case. And if your clients say the wrong thing, they could end up sharing devastating information which harms their case.
I hate bcc. I tend to avoid using it. The reason for this is if the person who was bccd hits reply all, the email goes to everyone to whom the email was originally sent. I once was bccd on an email, didn’t realize I had been bccd and hit reply all. Fortunately for me, this was not a client matter, but it turned out to be a politically sensitive one for some bar matters in which I was unknowingly involved. It wasn’t politically sensitive for me, but the person who bccd me had some “‘splaining to do.”
Remember. If you bcc your client and the client replies to all with confidential information, your client has now shared that confidential information with anyone who was on the original email. This might include opposing counsel.
- Do not bcc your clients.
- Forward emails after the fact.
You will avoid potentially serious problems if you follow these steps. (Hat tip to Lisa Solomon for sharing linked article on bccing clients.)
Be Aware of the Technology You Use
We are required under our ethical rules to be aware of the risks and benefits of any technology we use. This includes how we use email. Make sure you understand the risks and minimize them. Forwarding emails and removing opposing clients who are ccd is a great way to make certain you get rid of the risks while still having the benefit of the technology.