Obviating the Danger of the BCC

When you send someone an email, more likely than not, you intend the email to be for the recipient alone. You don't routinely add language: "do not forward this email; for your eyes only." You send the email - the privacy aspect is, we all believe, understood. But as we have all experienced, I suspect both in business and in our personal lives, one emails with the indisputable risk that the email - intended only for the recipient - may be forwarded whether intentionally or by accident. How many of us have received emails with pages of earlier chains which may or may not be related to the issue at hand?

But what about when lawyers get into the act? There can be no question that it is critically important for lawyers to communicate to their clients as much information as possible concerning their dealings with adversaries. And often clients want to - and should - know what's going on in "real time." There are some lawyers (wise lawyers, I believe) who pick up the phone to establish a relationship with their adversary and sometimes even to "backchannel" candid discussions in the hopes of avoiding needless skirmishes along the path toward possible resolution. And they then call their client to let them know what transpired. But let's face it, a lot of business gets done through email. And given the way we live, it is impossible to avoid it - we communicate from different time zones, as we are heading to a meeting, maybe even from our kid's softball game. So, like it or not, lawyers have substantive, important and material "conversations" through email.

Now let's take the following scenario: the lawyer communicates with her adversary by email (copying her law partner) and, to save time simultaneously bccs her client so that the client is immediately up to speed on what's transpiring. Ostensibly, no problem right? After all, the adversary who is the intended recipient presumably understands that the lawyer will be keeping her client in the loop and could have no gripe that the client is being sent the email. But what if the client, upon reading the email, hits "reply to all" - intending to communicate his substantive response just to his own lawyers. Believe me, you don't have to be a computer-whiz to know that that response will also go to everyone on the original email, including the adverse lawyer.

The adverse attorney will have an ethical obligation to promptly report the unintended disclosure and follow the likely instruction to delete the substantive email and promptly forget what they learned from it. But people who live in the real world know how that goes! Hard as it might be to unring a bell, it's even harder when one truly doesn't want to unring it.

But couldn't this risk of unintended disclosure by the client to the "enemy lawyer" have been easily avoided? Of course. Sure, the client could have looked at who his "reply to all" was being sent to. But more to the point, the lawyer could simply have sent the email to her adversary and partner and, when that so-simple procedure was complete, she could have kept the client in the (verbatim) loop by simply forwarding the sent email to the client (with a copy to her law partner). So, if the client wanted to respond by "replying to all" it would have just gone to his own counsel, no one else! The adverse lawyer would never have seen the client's (extremely informative) email.

These rules of the road apply to everyone who wants to preserve the confidentiality of communications with counsel. The New York State Bar Association's Committee on Professional Ethics (Op. 1076) even got involved to answer a curious inquiry from a member. There the lawyer seeking the bar's opinion wanted to know if she could bcc to her client her email to opposing counsel, even though that counsel objected to the practice (it is not clear how or why opposing counsel even knew about the bccs).

The Committee flat out rejected the idea that an opposing counsel could veto a lawyer's ability to communicate with her client. Nonetheless, the Committee decided to go further than necessary to answer the question. It explained the practical reasons outlined above for using "forward", rather than "bcc", to correspond with the client and, citing to a Massachusetts case, noted the "foreseeable risk" that the client would respond without taking careful note of who he was replying to.

The Committee also noted another possible risk. If a client (even unintendedly) communicates with the adverse attorney by replying to all, it may encourage the adverse attorney to believe your client has initiated the communication so that he has an invitation to engage directly with the client. The Committee quickly tells us that this action by adverse counsel would not be proper under the rules of conduct, but why would we want to risk that issue, too, being introduced into the mix?

When Samuel Morse first telegraphed "what hath God wrought" and when Alexander Graham Bell first telephoned Mr. Watson, they could not have even imagined email. Just as their discoveries were monumental in their time, email is - without question - one of the greatest inventions of the modern era. But for those of us old enough to remember a "party line" - when different households would use the same phone line and could theoretically listen in on a call made by a neighbor - or even those who were born before 1990, we must come to grips with how we ourselves, albeit inadvertently, may instigate confidentiality breaches through email. Indeed, in the party line situation, we were not at fault if a snoopy neighbor picked up her line and listened in. But that is not our world today. And if we send a bcc, even though the client should realize who he is replying to, the lawyers may directly be at fault if a client goes astray with a communication that was intended to be client-to-his-lawyer only.