This website has covered a number of “reply all” fiascos at law firms, law schools, and in other parts of the legal profession over the years. As we all know from firsthand experience, even though email is pretty easy to use, some functions can cause trouble from time to time. One email practice that leads to problems and inefficiency is bcc’ing. For those who do not know, bcc (which stands for “blind carbon copy”) is a practice in which a party is added to an email, but other recipients of that email do not know that the bcc’ed person received it. Although it may be convenient for lawyers to loop in clients or other attorneys without other people knowing that the message has been circulated to additional parties, bcc’ing can be fraught with issues.
One common practice within the legal profession is to forward relevant emails sent by counsel to clients so that clients can be apprised of updates on matters. Some clients separately forward emails to their clients so that they can selectively circulate important exchanges. However, forwarding a message requires separate effort from a lawyer. By placing the client in a bcc line, the lawyer can ensure that a client receives the message without extra effort.
However, it is more likely that a client will have a “reply all” mishap when they are bcc’ed on a message than when a message is forwarded to them. When a client replies all to a forwarded message, just the lawyer and anyone the lawyer specifically added to the message will be responded to. However, if the client replies all to a bcc’ed message, they will reply to everyone on the original message, which can include opposing counsel and others.
Numerous times in my career, I have seen this happen. Indeed, sometimes, I have seen client and lawyer engaging in discussions through email because of a bcc reply all mishap, not knowing that an opposing counsel was on the chain until several emails had been exchanged back and forth. Not only can this be embarrassing, but clients and their lawyers can reveal confidential information that they do not wish to expose, and this can have a negative impact on a representation. Lawyers should try to do everything in their power to keep attorney-client communications from being revealed, and this usually means that they should rely less on the bcc function in their email.
Bcc’ing can also lead to confusion among lawyers and other stakeholders to a legal matter since individuals may not know who knows what information and who should be told about developments. There are often numerous parties involved in a legal matter. This includes lawyers, clients (which, for organizations, can involve numerous people) accountants, experts, staffs of lawyers, and other professionals. It is usually important to know which professionals are in the loop so that individuals can avoid duplicative efforts.
One time when I was in Biglaw, I prepared a summary of happenings in a case to date for a partner who I assumed had not been involved to that point. However, the partner told me later that he was being bcc’ed on most messages and that he was pretty well apprised of the content of the emails and the happenings in a case. If the partner’s involvement in the emails was out in the open, like in the cc line of the emails, I would have known that the lawyer knew significant information related to the case and did not need a separate summary.
Moreover, and this point is subjective and definitely open to debate, there seems to be something surreptitious (or at least nontransparent) about sending messages to others using bcc. People usually assume that all of the recipients of a message are listed on an email either in the to or cc line, and most people do not consider that parties might be bcc’ed on a message. Parties might take a different approach if they think all of the contemporaneous recipients of an email are visible. Of course, it is commonly understood among lawyers that emails are usually not confidential. Indeed, everyone knows that emails can be forwarded to all types of parties, used during motion practice, and are otherwise shared. However, sending a message contemporaneously to a party unbeknownst to the other recipients of that message can seem duplicative, and accordingly, lawyers should give more thought about when they should bcc parties to email messages.
All told, lawyers need to implement practices and procedures that minimize risk of exposing confidential communications and increase efficiency in the operation of a law practice. For a variety of reasons, reducing the times a lawyer uses the bcc function of an email platform can increase transparency and minimize the chances of a “reply all” or other mishaps while using email.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at email@example.com.