The Professional Practice Committee recently had to consider a case where an email was copied to an opposing client

 The Professional Practice Team supports a number of committees within the Society. Two of the team, Stella McCraw and Coral Riddell, are part of the Professional Practice Committee. The “Prof Prac” Committee meets monthly to consider matters of professional conduct which can often form the basis of further guidance for solicitors. Recently, the committee concluded the investigation of a complaint against a solicitor who emailed an opposing client.

Essentially, the solicitor who was the subject of a complaint had corresponded by email with the complainer’s agent, and had clicked the “Reply to all” button, thereby also corresponding directly and contemporaneously with that agent’s client. The opposing client complained. The solicitor complained of took the view that the real-time effect of copying in the client to his email was no more improper than say, conducting a conversation at a round-the-table meeting at which all the recipients of the email were present.

The matter was subsequently referred to the Professional Practice Committee for comment and future guidance.

The committee considered that in certain situations the effect of copying in the clients of the “other side” was neutral, whereas in others it was not. The committee agreed that when the sole purpose of the copying-in was an attempt to tout for the future business of the existing client, that would not be tolerable.

Addressing the proposition that using the “Reply to all” function in sending an email is akin to a round-the-table meeting, the committee did not agree that this is directly analogous. Parties can elect whether or not to attend a meeting – the same cannot be said about receiving an unsolicited email from the opposing solicitor. Additionally, conversations at a meeting benefit from being able to speak face to face and to hear tone, which an email cannot replicate. It is also the case that when a solicitor and a client attend a meeting, a client’s solicitor can interpret and explain in real time any comments by the opposing solicitor and also advise a client on the merits of responding.

The committee observed that it can sometimes be of assistance to use email to circulate to all parties technical information relating to a transaction, but crossing the line from the sharing of neutral material into opinion, comment or even just preparing an email too quickly so that it does not reflect the correct tone of the intended communication are issues that can arise all too easily with this form of communication.

The committee also considered the further proposition that if a solicitor has copied his own client into an email to the opposing solicitor, in doing so the solicitor has implied that any response might reasonably be copied directly to his client. In the committee’s view, this is no different to a solicitor sending a letter to the opposing solicitor and as a matter of courtesy marking a list of parties to whom the letter has also been copied. This is not traditionally read as implying that the response can or should be copied to all these parties, and therefore the committee also disagreed with this proposition.

The committee concluded that all these actions are regulated by rule B1.14.2: Standards of Conduct, which provides that a solicitor may only communicate with a person known or believed to be the client of another regulated person in stated circumstances that include “the other regulated person has agreed to the communication”.

There is nothing particular about electronic communication to make it a special case and so exempt from these rules. Consequently, no new rule or guidance is required, but the matter serves as a useful reminder to the profession as to the applicability of the current rules to electronic communications.

The Author
Stella McCraw is a solicitor in the professional practice team. You can contact Stella on 0131 226 8896 or stellamccraw@lawscot.org.uk
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