Courtesy copying clients on emails

Posted Tuesday, August 26th, 2014 by Gregory Forman
Filed under Attorney-Client Relations, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Rules of Professional (Lawyer) Conduct

Fellow attorneys often ask me why I courtesy copy my clients on almost all emails. Evidently it is not a uniform practice. However there are three good reasons for doing so.

First, it helps one comply with Rule 1.4(a), specifically Rule 1.4(a)(3), of the South Carolina Rules of Professional Conduct, which requires a lawyer to “keep the client reasonably informed about the status of the matter.” By allowing the client to be aware of communications regarding his or her case, one helps keep the client “ informed about the status of the matter.”

Second it allows the client to observe the work one is doing on the case and makes the client aware that the attorney is keeping abreast of the case. Clients who see that their attorney is copying him or her on every email, and is responding promptly to emails from other persons (opposing attorneys; guardians; experts; witnesses; judges; court clerks), are more likely to believe their attorney is working diligently on resolving their legal issues.

Finally, clients always want to know the progress of their case and frequently ask about case status. They rarely believe their attorney is keeping them fully informed. Observing the emails that their attorney is sending and receiving reduces client queries about case status and reduces their anxiety about their attorney not promptly informing them of important information.  As comment 4 to Rule 1.4 notes, “A lawyer’s regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation.”

There are two times when I will not courtesy copy clients on emails. The first is when I want to suggest a potential compromise on contested issues to an opposing attorney but want to see if that attorney is willing to “sell” the proposal to his or her client before I suggest the proposal to my client. As part of resolving contested cases, I might consider proposals that I think are reasonable but that I know won’t thrill my client. It is better for my relationship with my client if I not suggest such proposals to him or her until I have reason to believe it will be acceptable to the other side. Few things are worse for attorney-client relations than convincing a client to compromise and make a proposal that is slightly disappointing to that client, only to have the other side reject it. However I like to put such proposals in writing (rather than phoning opposing counsel to discuss them) so that we don’t reach an “agreement in principle” only to see the agreement fall apart due to disputes on the actual language. Thus, in suggesting such proposals, I don’t inform the client until and unless I believe the opposing party will accept it, and thus don’t courtesy copy my client on the email to opposing counsel making that suggested proposal.

The second reason I might not courtesy copy my client on an email is when I believe the other attorney had made a fixable mistake that I expect him or her to correct. Since I expect that attorney to correct the mistake I like to put him or her on notice in writing. That way if the mistake isn’t corrected, I cannot subsequently be accused of sandbagging that attorney by not noting the mistake sooner. However there’s no good reason for my client to know that I believe the opposing attorney has made a mistake. Courtesy copying one’s client on such emails merely embarrasses opposing attorneys.

I’ve yet to have a client complain about my forwarding emails I receive from others on his or her case or being courtesy copied on email I send out. There’s rarely a good reason to not forward or courtesy copy clients on emails involving their case.

5 thoughts on Courtesy copying clients on emails

  1. Copies to clients may be blind copies. If I am unwilling to send the client either an open or blind copy of an e-mail message or letter, then I need to consider whether I should send the e-mail message or letter to the recipient. Before I send copies of settlement proposals or negotiations to opposing counsel, I send them to my client first and ask for his or her comments, corrections, questions, and suggestions. If the client does not want me to send it, I should not send it. My experience is that clients will generally agree with what I propose so long as they feel that I am representing their interest and that we are “on the same team.”

    As to your concern about an e-mail message to opposing counsel asking for a correction, you state “Courtesy copying one’s client on such emails merely embarrasses opposing attorneys.” The opposing attorney has a duty to send your e-mail message to his or her client. The embarrassment of your client seeing the message compared with opposing counsel’s client seeing that e-mail message is so mild that it should not be a consideration, particularly if you send a blind copy rather than an open copy to your client.

    One of the reasons you copy the client is to inspire confidence that you are keeping the client informed. What do you risk if the client learns that you do not keep him or her informed on all subjects? For example, your clients most probably read every word you post on this blog–as do the better South Carolina family law lawyers. What will they think of your public confession that you do not tell them every thing? ☺

    When I send instructions to Erin K. Urquhart or to a paralegal, I copy the client so that the client will know what to expect. Frequently I will instruct a paralegal to call a client for a particular purpose. i copy the client so that he or she will expect the telephone call.

    I do not intend to for any of this to sound critical. You render a valuable service not only to your clients but to lawyers generally. Thank you.

  2. While I keep clients contemporaneously apprised of email exchanges, there are reasons to not copy them (blind or not) on emails to opposing counsel, particularly when the client may not be technologically savvy. It is all too easy for a client to accidentally click “Reply to all” and inadvertently copy opposing counsel on an email intended solely for you and which contains sensitive information. Of course, opposing counsel is expected to immediately delete the email (since it was not a purposeful waiver of attorney-client privilege by the client), but as they say, you cannot un-ring the bell. In those situations, although it is slightly more time consuming, it may be best to simply forward your sent emails to the client.

    It can also work the other way. I had a contested domestic case where opposing counsel emailed me about a rather mundane issue in the case, and she copied her client to the email. I sent a simple reply, and then to my chagrin, immediately realized that I had replied to all, including the opposing party. The opposing party immediately replied via email with a diatribe accusing me of all sorts of things, calling me unprofessional, rude (?), and saying that I “must not have been raised right” to direct my correspondence to her. Of course, I didn’t intend to violate the rules prohibiting direct contact with an opposing party, and the other attorney knew that and apologized on behalf of her client for the over-the-top reply.

    In any event, I agree that the default position should be to either CC or BCC clients on almost all emails, but I often have discussions with clients about the fact that I will be copying them on emails and to double-check every time and ensure that they are not replying only to me, and not opposing counsel.

  3. I agree with keeping clients informed of all correspondence, but a note of caution regarding email. Make sure your client changes his/her password upon retaining you as counsel and have the client confirm in writing his/her preferred method for receiving correspondence. I have the client mark the preferred method and a question regarding the opposing party’s access to passwords in my representation agreement that client’s sign. I realize both Mr. Foreman and Mr. McDow probably do this, but some attorneys still do not.

  4. Katelyn Parker says:

    I am a pro se party in a custody dispute there were several emails exchanged between my attorney in the opposing parties attorney that make it clear that the opposing party intended to change schools without my permission. Then they recanted. Am I allowed to print these emails to show them to the judge or is that illegal?

  5. Katelyn Parker says:

    I should say they did not recant they change their mind after reviewing the parenting plan which stated joint decision-making.

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