Three Reasons Lawyers Use BCC And Why To Stop

Lawyers often use BCC (blind carbon copy) in email to keep clients informed, to make it easier to capture sent email in the client folder, and to send email to multiple recipients. However, there are better and less risky ways to meet these goals.

BCC To Keep Clients Informed

Many attorneys, for the ease of keeping a client informed of a matter, blind carbon copy (bcc) their clients on emails to opposing counsel. However, it is far better to forward the message to your client. Why?

In the days of letter writing lawyers often generated a copy of a letter sent to opposing counsel and mailed it as a heads up to their clients. In email, BCC would seem the electronic equivalent. However, this method of telling the client can have unintended consequences.

For example, what if the client who is bcc’d responds using “reply all?” In the Superior Court of Massachusetts, we have the Charm v. Kohn case as an example of what could go wrong. A lawyer bcc’d his client on correspondence and the client used the “reply all” function to respond to his attorney, divulging confidential information to all parties including opposing counsel. The question before the court was whether a client’s own inadvertent disclosure of an otherwise privileged communication to adverse counsel was a waiver of the attorney-client privilege. While the court found that privilege was not waived, the opinion states: “They, and others, should take note: Reply all is risky. So is bcc. Further carelessness may compel a finding of waiver.” Simply forwarding the email to keep the client informed is a better and safer course of action.

Interestingly, the New York State Bar Association issued Opinion 1076 (12/8/15) which, in digest, suggests: “[a] lawyer may blind copy a client on e-mail correspondence with opposing counsel, despite the objection of opposing counsel. Because a lawyer is the agent of the client, sending such a blind copy is not deceptive. However, there are practical reasons why the lawyer should consider forwarding the e-mail correspondence to the client rather than using ‘bcc.’” The hypothetical in this opinion focused on whether the practice of Bcc’ing a client was deceptive under Rule 8.4(c), “conduct involving dishonesty, fraud, deceit or misrepresentation.”

Another scenario is that you “reply all” to an email you receive from opposing counsel when they have bcc’d their client. Are you in violation of Rule 4.2, the “anti-contact” rule? In North Carolina attorneys should read Suzanne Lever’s article from 2011, “You Can’t Touch This – A Look at the Anti-Contact Rule,” 2012 Formal Ethics Opinion 7, “Copying Represented Persons on Electronic Communications,” and Rule 4.2, “Communication with Person Represented by Counsel.” NC 2012 FEO 7 states that “the fact that a lawyer copies his own client on an electronic communication does not, in and of itself, constitute implied consent to a ‘reply to all’ responsive electronic communication.”

While there are some Microsoft Outlook add-ins that may help you maintain awareness of who you are responding to in an email, you may reply to an email from opposing counsel with a “reply” instead of “reply all.” Then you can copy any other necessary and visible email addresses from the “CC” line from their email into the CC line for your outbound email to reduce the risk of running afoul of the “anti-contact” rule. If you recognize none of the other visible email addresses, or recognize the parties copied could be a client, reply to the opposing counsel only.

With regard to cc of an email to parties, the ABA issued Formal Opinion 503 on November 2, 2022, which explores communication and ABA Model Rule 4.2. This new opinion suggests: “Absent special circumstances, lawyers who copy their clients on emails or other forms of electronic communication to counsel representing another person in the matter (infers) consent to a ‘reply all’ response from the receiving counsel”. Accordingly, the reply all communication would not violate Model Rule 4.2.” Another recent opinion (Washington State Bar Association Advisory Opinion 202201) addressing the CC of clients in attorney email concludes, “counsel should establish at the outset a procedure for determining if and when counsel may ‘reply all’ to a represented party copied on the email. This will also avoid any incorrect assumption about implied consent.”

If you have questions about replying all to an email where a represented person is or may be copied, or other questions about the NC Ethics Opinions and Rules as they apply to your practice, contact the North Carolina State Bar Ethics Hotline.

Bcc’ing Yourself on Sent Email

Many attorneys BCC themselves on email sent to clients so they can then go into their inbox and move the sent message to the proper client folder to keep all the correspondence in one place instead of looking in both the client folder and the “Sent” folder. But is there another way?

If your firm uses a document management system, like NetDocuments, consider looking at their NDMail add-on. It integrates with MS Outlook and Gmail and helps you instantly file emails, both incoming and sent messages, into the client folder with the documents.

If you are using a law practice management system (LPMS) you likely have a variety of ways to move emails into the client correspondence to store with the rest of the matter in the system. Some LPMS applications have Outlook and Gmail plugins to let you invoke a side panel and associate and copy a sent email with the client/matter. Some let you BCC a unique email address that emails to the matter correspondence folder. Others integrate directly with MS Outlook. Still more handle email from within the application, so instead of using Outlook or Gmail, you email from within the LPMS, and correspondence is automatically associated with the matter. If you are using a LPMS, ask the vendor what features can make sure both incoming and outbound client emails are easily managed and stored with the rest of the record.

Another method, if you are a MS Outlook user, is to file the sent email in a folder before you send it. When finished composing your email, either by creating a new email or replying to an existing one, click on the Options tab at the top of the email and choose “Save Sent Item To” in the “More Options” group. Then click “Other Folder” and choose the destination folder from your folder structure. If you have a lot of folders this may take some time, but not significantly more than combing your inbox for emails you Bcc’d to yourself and moving them to the proper client folder. For ease of use, add the “Save Sent Item To” option to your Quick Access toolbar by right clicking on it and you will be one step closer.

Another option for MS Outlook users is an add-on from TechHit called SimplyFile. It runs on current and older versions of Outlook. The Pro version costs $60 yearly per user, and it can be deployed and administered across a network for multiple users. SimplyFile uses artificial intelligence to identify which folder you might want to store an incoming or outbound email in with the click of a button. If you invoke SimplyFile for sent messages, whether you are replying to an email or sending a new one, once you click “Send” a dialog box appears. SimplyFile tries to identify the best folder match for the email, and if it doesn’t get it right, you can just type the name of the folder. Then you can choose options like “Send and File,” “Send, File and File Original,” “Send and Save in Sent Items” or under “More Actions,” choose “Send, File, and File Original Thread,” “Send, File, File Original and Task it,” and more.

Sending Email Blasts

If you are emailing to a lot of recipients, whether for a firm newsletter or to send an FYI to clients about changes to the law, you may use BCC to protect their confidentiality. If one client replies all and asks you a question regarding their matter or about potential representation, you may have created a confidentiality issue. A better way? Use tools designed to send blast emails that eliminate the option to reply all, make opt-out easy, and track opens and clicks.

If you are sending a newsletter or marketing email, tools like MailChimp have free tiers to get started for up to 2,000 subscribers. Mass mailing services also help you track your success, manage subscribers, and follow CAN-SPAM. The hard part about a newsletter is coming up with a compelling message that makes people want to open and read it. Legal news and legislation that impacts your clients, community and local information, comings and goings at the firm, your blog posts, resources, deadlines, consumer protection tips, and more are all content types that can help you craft a compelling newsletter. Determine how often you can send it out and be consistent. You can start with your list of current and former clients, contacts, and referrals, and make it easy for people to subscribe (and unsubscribe).

If you are not planning to start a formal newsletter, but need to email clients en masse occasionally, be aware that spammers use BCC to send mass emails. Because of that, if you don’t break up your emails to send to 15-20 people at a time it is likely their spam filter will divert your email and they will never see it. For occasional emails to a lot of recipients, you can use tools like TinyLetter, which is free.

If the content you are sending to clients is sensitive, you can also use Microsoft Word’s Mail Merge. Create your letter in Microsoft Word. Then collect the email addresses, names, and other variables in a spreadsheet. Use the Mail Merge Wizard (Mailings – Start Mail Merge – Step-By-Step Mail Merge Wizard) and choose “Email Messages” as the document type. Follow the steps to choose the spreadsheet with the email addresses and names. You can customize your message by using merge to address each recipient with their name and other information in the email. Then click “send.” Each recipient will be mailed individually. Here are the basic instructions.

Conclusion

Lawyers use email every day, but it is not without inefficiencies, potential pitfalls, and problems. Think about how you may use BCC and consider your options to reduce risks and assert more control over inadvertent disclosure and privilege waiver, issues arising from the “no contact” rule and confidentiality and following CAN-SPAM and other similar laws.

Catherine Sanders Reach serves as director of the NCBA Center for Practice Management.