Sui Generis--a New York law blog

Pennsylvania also weighs in on email tracking

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

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Pennsylvania Also Weighs In On Email Tracking

Last week I wrote about the recent ethics opinion out of Illinois, Opinion 18-01, wherein Illinois joined Alaska and New York in concluding that it is unethical for lawyers to use email tracking software. The Alaska committee specifically limited the prohibition to apply to emails with opposing counsel, whereas the other committees offered a broader prohibition that applied to all emails sent by a lawyer.

After my column was published, I learned that Pennsylvania had also issued an opinion addressing email tracking last year, Formal Opinion 2017-300. At issue in this opinion was whether it was ethically permissible for lawyers to use email tracking software when communicating with opposing counsel. As was the case in the Alaska opinion, the inquiry was specifically limited to emails sent to opposing counsel, as opposed to clients and other types fo recipients.

First, the Committee addressed the issue of how email tracking can affect attorney-client confidentiality when used with opposing counsel. The Committee concluded that information gleaned from the tracking tool could constitute an unwarranted intrusion into that confidential relationship, and provided the following scenario by way of example: “(W)hen a lawyer receives a document in the mail from opposing counsel and forwards it to a client, the lawyer and the client may reasonably believe that the sender is not aware of that subsequent communication, including when and how it was transmitted, when the client viewed it, and when or if the client forwarded the document to another person. The use of web bugs is contrary to this assumption.”

Next, the Committee explained that using email tracking tools when communicating with opposing counsel is also problematic because the lawyer receiving the email is unaware of the tracking software and is unable to do anything to disable it: “(T)his Committee believes that their use violates Rule 8.4’s prohibition against ‘conduct involving dishonesty, fraud, deceit or misrepresentation.’ Because the lawyer receiving the email does not and cannot reasonably determine or protect against web bugs, the sending lawyer’s use of these devices would violate Rule 8.4.”

Accordingly, the Committee concluded that using email tracking tools when communicating with opposing counsel is unethical: “This Committee concludes that the Pennsylvania Rules of Professional Conduct prohibit lawyers from using ‘web bugs’ or any other method to track the receipt and distribution of email sent to opposing counsel. While the use of visible tracking devices such as those used in commercial email do not violate the Rules of Professional Conduct, the use of a web bug, which opposing counsel cannot determine is present, violates Rules 4.4 and 8.4.”

Of interest is that the Committee exempted two specific types of email tracking tools from its conclusion and determined that they were ethically permissible: 1) email list services and 2) “read receipt” tools. The Committee explained that in both cases, the recipient has the ability to opt into the tracking, thus differentiating these tools from the email tracking software at issue in the opinion.

The Committee explained that email list software, such as Mail Chimp, did not violate the ethics rules since “(1) they are mass emails, and not personal to a client matter; (2) those services display their links to encourage users to click on them; and (3) lawyers and other recipients are aware that they are clicking on the links.”

Similarly, “read receipt” or “delivery receipt” tools, which are available for use in many email platforms, including Outlook, were permissible for lawyers to use since “recipients are aware of, and may configure their software to permit such receipts, to make their use optional, or to preclude their use…”

So, Pennsylvania lawyers have joined the ranks of those who should avoid using email tracking tools with opposing counsel. For those of you who practice in one of the many jurisdictions where this issue has not yet been addressed, I would suggest that it would be wise to err on the side of caution and, in the absence of consent, avoid using software with opposing counsel that could provide insights regarding their online behavior, whether it’s part of an email program or otherwise. After all, it’s better to be safe than sorry.

 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive, powerful law practice management software for solo and small law firms. 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 can be reached at [email protected].

Here’s How Lawyers Can Demystify Legal Technology

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

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Here’s How Lawyers Can Demystify Legal Technology

In last week’s column, I shared an assortment of online resources that lawyers can use to stay on top of legal technology. It’s not an easy task, given the rapid pace of technological change. Not surprisingly, that’s why some lawyers ignore technology altogether: it’s overwhelming for them to even consider learning about emerging technologies.

Doing so is undoubtedly a mistake, since 31 states now require lawyers to maintain technology competence as part of their ethical obligations, of which New York is one. But the question remains: how can lawyers find time to educate themselves about technology?

One way is to take advantage of the resources offered by your local and state bar associations. For example, when the recently formed Technology and Law Practice Committee that I chair for the Monroe County Bar Association meets each month, we host remote technology-related Q&As with legal technology experts. Our goal is to educate bar members and help them make better choices when it comes to incorporating technology into their firms.

These Q & As can be attended by all bar members, even if they’re not able to attend the meeting in-person, since the sessions are hosted online via GoToMeeting. This makes it easy for lawyers to sign in and participate remotely from their office computers. Recordings of those Q&As are also available online at the Bar’s website. Past interviews have included well-known legal technology experts Bob Ambrogi, Kevin O’Keefe, Mitch Kowalski, and Allison Shields. Next month’s meeting will be a Q & A with Jim Calloway, Director of the Oklahoma Bar Association's Management Assistance Program, so I hope you can join us!

Another way to stay abreast of technological change is by taking advantage of CLEs designed to help solo and small firm lawyers sift through the vast amounts of information about legal technology that’s available, both online and off. By attending these CLEs, you’ll learn the ins and outs of legal technology, which will help you make the right choices for your law firm.

In June, there’s a CLE planned locally that will help you do just that, so if you’re a Monroe County lawyer who’s struggling to incorporate technology into your law firm, you’re in luck. The Technology and Law Practice Committee is putting on a seminar on June 22nd at 12:15 entitled, “Demystifying technology: How to effectively - and ethically - use technology in your law firm.” You can register for it at the Bar’s website.

Meredith Lamb, a matrimonial attorney with Weinstein & Randisi, will be moderating a panel discussion during which you'll hear from two Rochester-based solo lawyers who have successfully implemented technology into their law practices: Danielle Wild and Aleksander Nikolas. They'll explain how and why they chose the specific tools they rely on every day to streamline their law firms. You’ll also hear their advice and practical tips, including lessons learned from their experiences. I’ll also be on the panel and will speak about the duty of technology competence and will explain why it's important for New York lawyers to make educated decisions about whether or not to use technology in their practices. The ethics of using cloud computing software will be discussed, along with examples of how different types of technology can streamline a practice. Finally, you’ll learn about resources that will help you stay on top of technology changes.

So if one of your priorities this year is to update your legal technology know-how, then this CLE is for you. With just a small investment of your time, you’ll gain lots of knowledge and will leave armed with the information you need to make informed technology decisions for your law firm. 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive, powerful law practice management software for solo and small law firms. 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 can be reached at [email protected].

Round Up: AI Contract Analytics Software, Technology Tips, Bitcoin, and More

I often write articles and blog posts for other outlets and am going to post a round up here from time to time (but won't include my Daily Record articles in the round up since I re-publish them to this blog in full). Here are my posts and articles from March 2018:

• Here’s the lowdown on contract analytics software - ABA Journal
• Legal Conferences Struggle For Survival — Are Conference Apps The Cure? (Above the Law)
• ABA Legal Technology Guide: Top Tips For Solo And Small-Firm Lawyers (Above the Law)
• Should Lawyers Accept Bitcoin as a Form of Payment? (MyCase Blog)
• Anatomy of an Effective Legal Bill (MyCase Blog)
  
• ABA Techshow 2018 Wrap Up (MyCase Blog)

Illinois weighs in on ethics of email tracking for lawyers

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

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Illinois Weighs in on Ethics of Email Tracking for Lawyers

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 issue 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 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. 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, 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.

 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive, powerful law practice management software for solo and small law firms. 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 can be reached at [email protected].