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Email Tracking: Is It Ethical For Lawyers?

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Email Tracking: Is It Ethical For Lawyers?

Lawyers have been using email for more than two decades now. Years ago, in the early 1990s, most jurisdictions did not permit lawyers to use email to communicate with clients. But in the mid-1990s, the tide shifted as email began to emerge as an essential communications tool for businesses. It was the ABA that first issued an ethics opinion green lighting the use of email for client communication, and other jurisdictions soon followed.

Since lawyers have been using email for so many years now, you’d think that all potential ethical issues relating to email would be resolved at this point, but like most technology, email is always evolving. While some lawyers continue to use email technology that is premise-based, others rely on web-based email. And for those lawyers, new tools are constantly being released that are designed to augment the functionality of web-based email. These tools can help lawyers to accomplish any number of goals, including encrypting their emails, streamlining their inbox, creating “to-dos” its using emails, “snoozing” emails for review at a later date, or tracking outgoing emails.

It’s the last function - tracking emails -that was at issue in an ethics opinion issued by the Alaska Bar Association Ethics Committee in October. At issue in Opinion 2016-1 was whether it “was ethically permissible for a lawyer to use a ‘web bug’ or other tracking device to track the location and use of emails and documents sent to opposing counsel.”

In reaching its determination, the Committee noted that the features of email-tracking tools can vary widely, with the more robust software including the ability to track: 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.

The Committee explained that the most troubling aspect of these programs is that they permit attorneys intrude upon opposing counsel’s work product by tracking how the attorney uses a particular document: “The tracking device could enable the sending lawyer to learn 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.”

Accordingly, as the Committee explained, even if use of the tracking software is disclosed, its application to emails sent to opposing counsel is ultimately both dishonest and unethical. Thus, the Committee concluded that: “(T)racking electronic communications with opposing counsel through “web bugs” impermissibly and unethically interferes with the lawyer-client relationship and the preservation of confidences and secrets….(reflecting) at a minimum, the lack of straightforwardness that is a hallmark of dishonest conduct…Sending ‘bugged’ emails or documents or other communications with embedded tracking devices constitutes an impermissible infringement on the lawyer’s ability to preserve a client’s confidences or secrets as required by Rule 1.6[11] and violates Rule 8.4(a) and (c).”

The only other state bar that I’m aware of that has addressed this issue is the New York State Bar, and it reached a similar conclusion in 2001 in Opinion 749. 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.”

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.