A recent ethics opinion from the Illinois State Bar Association has concluded that the practice of using hidden email tracking software is unethical. The opinion makes Illinois the fourth jurisdiction to address this issue, alongside Alaska, Pennsylvania, and New York. Secret
The email tracking software is often employed in marketing emails, but its use in emails between lawyers and their clients, and emails between lawyers, can run afoul of various ethics rules.
The stealth tracking software at issue, also known as “spymail,” “web bugs,” and “web beacons,” is capable of tracking when and who opened an email, how long they kept the email open, and whether and how long any attachments were opened or reopened. The covert software is also capable of tracking whether the email and/or attachments were forwarded and to whom, as well as the recipient’s general geographic location.
The Illinois panel concluded that the software “covertly invades the client-lawyer relationship between the receiving lawyer and that lawyer’s client.” The software can improperly interfere with that relationship, for example, by disclosing the client’s location or revealing details about the receiving lawyer’s review of a proposed settlement agreement. Just as a lawyer should “almost always” inform a client if a conversation is being recorded, so too should the lawyer notify a client about tracking his or her emails. In the latter situation, according to the Illinois panel, the conduct is both dishonest and deceitful without written consent, in violation of Illinois Rule 8.4(c).
Notably, the panel stated that receiving lawyers do not have a duty to detect and prevent covert tracking. Such a duty would impose an “unfair, unworkable, and unreasonable” burden on lawyers to understand how the most up-to-date software works. While Comment 8 to Illinois Rule 1.1 requires attorneys to keep abreast of the benefits and risks of technology, the Illinois opinion does not go so far as putting the duty on the receiving lawyers to discover and proactively defeat email tracking.
This opinion sheds light on how the exponential growth of technology will continue to create new situations where legal professionals are faced with unanticipated ethical dilemmas.
Read the full opinion here.
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