Ride the Lightning

Does E-mail Tracking by Lawyers Violate the Rules of Professional Conduct? Yes.

April 26, 2018

Attorney at Work recently published an interesting post on the ethics considerations involved in using e-mail tracking software.

E-mail tracking software, also known as "web bugs," "web beacons" or "spymail," is employed in most marketing e-mail you receive. As the post says, "companies use these tools to evaluate the effectiveness of e-mail blasts: Did the recipient open the email? On what type of computer, cellphone or tablet was the e-mail opened? How long was it open before it was closed or deleted? Where was the e-mail opened (via what IP address)? Was a link clicked from inside the e-mail? And so on."

But what about using such software in a law firm setting? The post postulates the following:

"You are negotiating the settlement of a civil matter, and you send opposing counsel an e-mail with your client's offer. Within the next few days, you are alerted to that offer e-mail being opened by opposing counsel several times at the IP address for that attorney. Then, you are alerted that several other IP addresses show the e-mail being opened, including at the location of opposing counsel's client and what you suspect is the insurance carrier for that client. By the end of the workweek, your e-mail tracking software has confirmed that at least 11 devices at eight different locations have viewed the e-mail for more than 10 minutes at a time. Thanks to the spyware included with the e-mail, you have a pretty clear idea that they are seriously considering, or at least discussing, the offer you emailed. And this is all done without their knowledge or consent."

We have at least some guidance on this issue: A recent Professional Conduct Advisory Opinion from the Illinois State Bar Association, (Opinion No. 18-01, January 2018) joined at least three other jurisdictions in concluding that the practice of using hidden e-mail tracking software would be unethical for a variety of reasons. (See Alaska Bar Association Ethics Opinion No. 2016-01; New York State Bar Association Ethics Opinion 749; and Pennsylvania Bar Association Formal Opinion 2017-300.)

E-mail tracking software uses an invisible image or code in the message – it is invisible to the original recipient and subsequent recipients. As the opinion points out, this is different from a "read receipt" because that provides only confirmation of receipt, not subsequent handling of an e-mail.

The ISBA opinion concludes that the use of such tools by counsel in communications with other lawyers constitutes dishonesty or deceit under Illinois Rule of Professional Conduct 8.4(c). Such deception can penetrate the attorney-client relationship of the receiving lawyer and that lawyer's client to potentially, and likely, divulge protected insight.

The use of e-mail tracking tools is an unknown and "unwarranted intrusion" upon the attorney-client relationship, the ISBA opinion states, in violation of protections afforded under Illinois Rules 1.6(a) (duty to preserve confidential information; see ABA Model Rule 1.6) and 1.9(c)(2) (duty to preserve confidential information of former clients; see ABA Model Rule 1.9). Furthermore, the information gained through the e-mail tracking software could be improperly obtained evidence in violation of the rights of a third party as protected under Illinois Rule 4.4(a) (respect for rights of third persons; see ABA Model Rule 4.4) and discussed in Comment 1 to that rule.

I liked that the post also referred to the Preamble to the Model Rules of Professional Conduct [2], in part: "As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others." Just because you CAN do something doesn't mean you can do ethically.

The opinion concludes that there is no duty on a lawyer's part to defeat e-mail tracking software which it calls "unfair, unworkable and unreasonable." I heartily agree. There is no one, easy-to-use silver bullet to defeat such software.

Congratulations to Mark C. Palmer, Professionalism Counsel, Illinois Supreme Court Commission on Professionalism, for a very thought-provoking post. It has just found its way into my "Ethical Competence" PowerPoint for the Abingdon Bench-Bar Conference next week. Timing is everything.

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