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QUESTION: I have finally embraced email as my primary communication tool with clients as well as most of my opposing counsel and even the court. As I tend to serve the new generation of clients more and more, prompt email communication is demanded and expected.
I have heard of email tracking software, often used by marketing companies to monitor email traffic. While this would be helpful in my practice at times, are there ethics considerations to tracking email? I mean, I send some important documents through the U.S. mail with a return-receipt requested, so is this similar with email?
ANSWER: While email has revolutionized the pace at which we can respond to our clients’ needs and communicate with others, it brings about concerns far beyond what traditional “snail mail” deliveries entail. There may be more than meets the eye when you open an email.
Sure, there is the content in the body of the email, the signature information of the sender, and often attachments. Sometimes you even get a “read-receipt request” to reply to the sender that you have read (or at least opened) the email. But there can be another unseen component to it that allows the sender to learn a lot more than whether the email has been opened.
Email tracking software, also known as “web bugs,” “web beacons” or “spymail,” is likely employed in just about every marketing email you receive. Companies use these tools to evaluate the effectiveness of email blasts: Did the recipient open the email? On what type of computer, cellphone or tablet was the email opened? How long was it open before it was closed or deleted? Where was the email opened (via what IP address)? Was a link clicked from inside the email? And so on.
Now, apply such a tool to tracking information about emails in a law practice. Say, for example, you are negotiating the settlement of a civil matter, and you send opposing counsel an email with your client’s offer. Within the next few days, you are alerted to that offer email 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 email 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 email tracking software has confirmed that at least 11 devices at eight different locations have viewed the email for more than 10 minutes at a time. Thanks to the spyware included with the email, 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.
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 email 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.)
The tracking software, typically using an invisible image or code in the email message, does its work without the knowledge of the original recipient or any subsequent recipients of the forwarded message, and may not be avoidable, even with detecting or blocking mechanisms. Note that this is not to be confused with visible email tracking requests such as read-receipts or “delivery receipts” used as part of many email programs, which would be allowed. The ISBA opinion makes such an operation analogous to certified mail: “Because this function provides only a confirmation of receipt rather than information concerning the subsequent handling of an email, it does not appear to raise the client protection concerns discussed in this opinion.”
Similarly, while the Illinois opinion does not directly address this, the Pennsylvania opinion states it “does not prohibit the use of email services, such as Constant Contact or MailChimp, because (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.” The ISBA also notes in a footnote that, “There may be situations where a lawyer’s use of tracking software does not implicate client interests or otherwise involve the representation of a client, such as in email correspondence concerning a lawyer’s own business activities. This opinion does not address those situations.”
However, the ISBA opinion concludes that, at a minimum, 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, extraordinary insight that might not only be protected, but might be quite relevant to the matter.
The use of email tracking tools is an unknown and “unwarranted intrusion” upon the attorney-client relationship, the ISBA opinion continues, 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 email 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.
Also see the Preamble to the Model Rules of Professional Conduct , in part: “As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others.”
Lastly, the ISBA opinion takes the position that requiring lawyers who receive emails “to first discover and then defeat every undisclosed use of tracking software would be unfair, unworkable, and unreasonable.” While Comment 8 to the ABA Model Rules (adopted in the majority of states) requires attorneys keep abreast of the benefits and risks associated with relevant technology, and Illinois Rule 1.6(e) (see ABA Model Rule 1.6(c)) demands counsel make reasonable efforts to prevent inadvertent or unauthorized access to client information, the ISBA opinion does not go as far as putting the duty on the receiving lawyer to proactively defeat email tracking.
As I have said before concerning other future law issues, the exponential growth of technology applications will continue to create new circumstances under which the legal profession is obligated to take due care. While our foundational principles may remain constant, their application must remain fluid to our ever-changing world.
The Commission on Professionalism was established by the Illinois Supreme Court in September 2005 to foster increased civility, professionalism and inclusiveness among lawyers and judges in the state of Illinois. By advancing the highest standards of conduct among lawyers, we work to better serve clients and society alike. These duties we uphold are defined under Supreme Court Rule 799(c). For more information, visit 2Civility.org, the Illinois Supreme Court Commission on Professionalism’s website.
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