Illinois lawyers can’t ethically use covert software to track emails and other documents electronically sent to clients or other lawyers, a recent Illinois bar ethics opinion advises.
Bar panels in at least four jurisdictions now say it is unethical to use “web bugs” or other email tracking software to monitor how and when recipients review and circulate emails and other electronic documents. The Jan. Illinois opinion largely follows ethics opinions from Alaska, Pennsylvania, and New York addressing this issue. See 32 Law. Man. Prof. Conduct 638.
Stealth tracking software, which is often used for marketing, can track a host of information such as when and who opened an email, for how long, whether and how long any attachments were opened or reopened, whether the email and/or attachments were forwarded and to whom, and the general geographic location of the recipient(s). The software is also referred to as “web bugs,” “web beacons,” or “spymail.”
The Illinois panel concluded that the use of such tools by lawyers in communications with other counsel is both dishonest and deceitful and is an “unwarranted intrusion” upon the attorney-client relationship between the opposing lawyer and that lawyer’s client.
Intrusion Into Attorney-Client Relationship
Stealth tracking software “covertly invades the client-lawyer relationship between the receiving lawyer and that lawyer’s client,” the panel said. Citing the Alaska opinion, the panel said the email spyware can improperly interfere with that relationship by, for example:
• disclosing where a client relocated—a fact the client wanted to remain private—if the lawyer forwards a tracked email; or
• revealing details about the receiving lawyer’s review of a proposed settlement agreement.
And the technology also provides other “opportunities for intrusion” on communications with insurers, experts, consultants, investigators, and other nonlawyers assisting in a matter.
Details about such communications are confidential and thus protected from disclosure by Illinois Rules 1.6(a) (duty to preserve confidential information) and 1.9(c)(2) (duty to preserve confidential information of former clients), the opinion advised. Accessing those details by stealth also would violate Illinois Rule 4.4(a) (respecting rights of a third party).
Dishonest and Deceitful
Using email tracking on communications with another lawyer, or even a lawyer’s own client, without written consent is both dishonest and deceitful under Rule 8.4(g), the opinion says. That rule, which is based on the ABA Model Rule, prohibits dishonest and deceitful conduct.
This conclusion is in line with the state’s public policy against recording telephone calls without the consent of all participants—secretly monitoring electronic communications is no less dishonest or deceitful, the panel said.
The panel compared using covert tracking to a lawyer’s obligation to notify opposing counsel that his client’s confidential information was inadvertently disclosed. A lawyer can’t obtain by stealth the same kind of information, the panel reasoned.
Notably, the Illinois opinion said it’s also unethical for a lawyer to use tracking software on the lawyer’s own client. Just as a lawyer should “‘almost always’” inform a client if a conversation is being recorded, so too should the lawyer tell a client about tracking his or her emails.
No Duty to Defeat Tracking
The onus shouldn’t be on receiving lawyers to detect and prevent covert tracking, even though Comment  to Illinois Rule 1.1 states that lawyers should keep abreast of the benefits and risks of technology, the panel said. Imposing that duty would be an “unfair, unworkable, and unreasonable” burden on lawyers to understand how the most up to date tracking software works and try to defeat it.
That would put the burden on the wrong party, the panel said, and would be especially unfair to solo or small firm practitioners.
Read Receipts are OK
But the panel said using the “read-receipt” email function isn’t subject to the same analysis as spyware. “Read-receipts” are just the electronic version of certified mail receipts—they don’t disclose details about the “subsequent handling of an email” like the tracking software does, the panel said.
The opinion is Ill. State Bar Ass’n Comm. on Prof’l Ethics, Op. 18-01, 1/18.