Nicole Black, BridgeTower Media Newswires
Earlier this month 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 (online: https://www.pabar.org/ members/catalogs/Ethics%20Opinions/formal/F2017-300.pdf). 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 of 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.
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com.
