The American Bar Association, through the issuance of ABA Formal Opinion 503, clarified a potential trap for the unwary. While not binding, these opinions have persuasive authority. The issue giving rise to this opinion is that some attorneys copy their client on emails to opposing parties. The problem for the responding party is that, by replying all, an almost habitual action, the opposing attorney has now directly communicated with a party represented by counsel. This can be a problem under Illinois Rule of Professional Conduct Rule 4.2, which provides that “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” The ABA’s opinion has clarified that, by copying a client on the email, the opposing lawyer provided the consent to the reply all communication, and the lawyer sending the communication would not be in violation of the Rules of Professional Conduct.
If you have a question about the Illinois ARDC or attorney disciplinary matters, contact Michael Haeberle at firstname.lastname@example.org.