Nicole Black, BridgeTower Media Newswires
As technology evolves, so too do the tools we use to enhance even the most basic technologies that we interact with on a day-to-day basis. For example: email. It’s been part of our lives for decades now, and while it hasn’t changed much, there are a multitude of tools available that increase its functionality.
That’s why ethical issues relating to lawyers’ use of email continue to arise even though email use by lawyers was given the ethical nod more than 20 years ago. Some concerns relate to the security of email now that more advanced and encrypted methods of electronic communication are available. Other issues revolve around the use of tools designed to enhance the functionality of email, such as email tracking.
I last wrote about the ethics of the use of email tracking software by lawyers in December 2016, after the Alaska Bar Association Ethics Committee concluded in Opinion 2016-1 (online: https://alaskabar.org/ wp-content/uploads/2016-1.pdf ) that even if the use of email tracking software is disclosed, its application to emails sent to opposing counsel is ultimately both dishonest and unethical.
More recently, the Illinois State Bar Association addressed that very same issue in Advisory Opinion 18-01 (online: https:// www.isba.org/sites/default/files/ethicsopinions/Opinion%2018-01.pdf). Specifically, the inquiring attorney asked whether “the use of undisclosed ‘tracking’ software (sometimes known as ‘web bugs,’ ‘web beacons,’ or ‘spymail’) in emails or other electronic communications with other lawyers or clients is ethically permissible.”
At the outset of the opinion, the Committee explained that this type of software typically tracks, among other things: “1) when the email was opened; 2) how long the email was reviewed (including whether it was in the foreground or background while the user worked on other activities); 3) how many times the email was opened; 4) whether the recipient opened attachments to the email; 5) how long the attachment (or a page of the attachment) was reviewed; 6) whether and when the subject email or attachment was forwarded; and 7) the rough geographical location of the recipient.”
Next, the Committee noted that most lawyers operated under the very reasonable assumption that electronic communications with opposing counsel would be free from any type of tracking. The Committee explained that this was especially so given the nature of the information that could be obtained via email tracking software, including “how much time the receiving lawyer spent reviewing the communication — including even specific pages of documents — or how frequently the communication was viewed (a proxy for how important the receiving lawyer deemed it to be), whether and when it was forwarded either to the client or co-counsel or otherwise, the location of the recipients, and the details of the recipients’ review of the document.”
Next, the Committee turned to the sensitive nature of the information that could be obtained from email tracking, opining that the use of such software to track electronic communications with opposing counsel evidences “the lack of straightforwardness that is a hallmark of dishonest conduct.”
Accordingly, the Committee concluded that even if the use of email tracking tools were disclosed to opposing counsel, their use was nevertheless impermissible since the software allowed “the sending lawyer to intrude upon the attorney’s work product by tracking the attorney’s use of that document, (thus constituting) an unwarranted intrusion into the attorney-client relationship.”
Other than Illinois and Alaska, the New York State Bar is the only other bar I’m aware of that has addressed this issue and it reached a similar conclusion. In 2001 in Opinion 749 (online: http://www.nysba.org/Custom Templates/Content.aspx?id=5463), the Committee on Professional Ethics determined that a lawyer may not “use available technology to surreptitiously examine and trace e-mail and other electronic documents.” So, New York lawyers are likewise barred from using email tracking software.
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com.
