The Risk Manager, Spring 2018

Invisible web-bugged emails sent to opposing counsel tracking how the recipient uses them is a growing risk for lawyers.  The Alaska Bar Association Ethics Opinion No. 2016-1 (10/26/16) addressed the issue by considering this question: May a Lawyer Surreptitiously Track Emails and Other Documents Sent to Opposing Counsel?

The opinion begins with a good description of what a web bug is:

A web bug is a technology tool that tracks certain information about the document to which it is attached. A common method of “web bugging” – used in e-mail newsletters to help track readers, for example – involves placing an image with a unique website address on an Internet server. The document at issue contains a link to this image. The image may be invisible or may be disguised as a part of the document (e.g., part of a footer). When the recipient opens the document, the recipient’s computer looks up the image and thereby sends certain information to the sending party.

The opinion includes this list of what web bugs can track without the recipient’s knowledge:

  • when the email was opened;
  • how long the email was reviewed (including whether it was in the foreground or background while the user worked on other activities);
  • how many times the email was opened;
  • whether the recipient opened attachments to the email;
  • how long the attachment (or a page of the attachment) was reviewed;
  • whether and when the subject email or attachment was forwarded; and
  • the rough geographical location of the recipient.

The Committee concluded:

  • The use of a tracking device that provides information about the use of documents – aside from their receipt and having been “read” by opposing counsel – is a violation of Rule 8.4 [Misconduct] and also potentially impermissibly infringes on the lawyer’s ability to preserve a client’s confidences as required by Rule 1.6.
  • The onus is on the sending lawyer to abstain from using a web bug. It may be impracticable because of rapidly changing technology and software to place a duty on the receiving lawyer to take “reasonable precautions” to detect bugged email.

The recent Illinois State Bar Ethics Opinion 18-01 (1/18) concurs with the Alaska opinion and points out that “read receipts” are equivalent to certified mail receipts. The opinion also concluded that it is unethical to use tracking software on email sent to a lawyer’s own clients.

There is disagreement with the Alaska opinion on which lawyer has the burden to prevent bugged email. Some authorities argue that the onus should be on the receiving lawyer to risk manage email. The article Email Tracking: Is It Ethical? Is it Even Legal? by Chad Gilles* is a thorough discussion of the issue. While it is problematic to anticipate how Kentucky authorities might decide the issue, it is likely they would agree with the Alaska opinion. The best risk management approach is to follow it or call the Kentucky Ethics Hotline for guidance.

*Lawyers’ Manual on Professional Conduct, Current Reports, Vol. 33,No. 1, p.21, 1/11/17.