Ethics – Ex Parte Contact Rule Prohibits Email Transmitted to Both Counsel for a Represented Party and the Represented Party

The New York City Bar Association Committee on Professional and Judicial Ethics in Formal Opinion 2009-1 held that an attorney would violate the ex parte contacts rule of DR 7-104(A)(1) by sending a copy of an email or letter simultaneously to the represented person as well as that person’s lawyer. The Committee opined that sending a copy to the addressee’s lawyer does not satisfy the duty to obtain prior consent from a represented person’s counsel before contacting the person directly. The Committee further advised that, in the context of an email chain among attorneys and their clients, a lawyer’s prior consent for a “reply to all” communication may sometimes be inferred from the lawyer’s conduct or acquiescence. Having said that, the committee stated that best practice is to obtain express consent either orally or in writing from counsel.