(Yet Another) Update on Email Ethics for North Carolina Lawyers

Photo credit: Prad Prathivi @ Amodica:/ Foter

I have recently written (here and here) about legal ethics issues involved when a lawyer sends an email message to opposing counsel and copies the receiving lawyer's client (e.g., using the "cc" or "reply all" function).  (My first analysis of the State Bar Ethics Committee's opinion on the topic was published in The Business Lawyer in May 2013.)  There has been another development on this issue.  

At a meeting last week (October 25, 2013), the North Carolina State Bar Council adopted a revised opinion on this issue.  The opinion does not appear to have been officially reported yet, but yesterday, Charlotte healthcare lawyer Karen Gledhill reported to the members of the Business Law Section of the North Carolina Bar Association on the State Bar Council's decision.  Consistent with the revised proposal that I have previously described, whether a lawyer may copy a represented party on an email depends upon whether the lawyer can reasonably infer that the recipient's lawyer has consented, based on the facts and circumstances.

Gledhill reports that the State Bar Ethics Committee voted on October 24, 2013, to recommend the Ethics Opinion to the State Bar Council, which adopted the Ethics Opinion on October 25, 2013. She also summarizes (here) the relevant factors used to infer consent, as well as the commonsense guidance provided by the Council (e.g., that it is prudent to obtain explicit consent rather than infer it.)