Sorry, bad and lazy pun for a title. As loyal readers of the site know, I like to write from time-to-time about formal ethics opinions issued by state regulatory bodies. A recent one caught my attention at first for its — “I cannot believe someone even had to ask feel.” But, ultimately after I read it all the way through, it intrigued me as a gateway to raise another, related and I happen to think a bit more interesting question.
With that as prologue, on October 26, 2016, the Alaska Bar Association Board of Governors approved Ethics Opinion 2016-1 for release. The opinion tackles the following question:
Is it ethically permissible for a lawyer to use a “web bug” or other tracking device to track the location and use of emails and documents sent to opposing counsel?
The opinion gets the answer to that question undoubtedly correct by saying that, no, it isn’t and that doing something like that violates Alaska’s RPC 8.4 on generally deceptive conduct and is also problematic because it can undercut the receiving lawyer’s ability to comply with her own obligations under RPC 1.6 to attempt to protect information related to her representation of her client as confidential.
To give a better sense of the kind of technology being discussed, the Opinion explains:
One commercial provider of this web bug service advertises that users may track emails “invisibly” (i.e., without the recipient’s knowledge) and may also track, among other details:
- 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.
Yikes, right. That’s a pretty dogged little bug and one that would provide a significant, surreptitious window into the work of the lawyer on the other side. When I saw the headlines at places like the ABA Journal online about the issuance of this opinion, I jumped to the incorrect conclusion that the lawyer requesting the opinion was a lawyer looking to use this kind of software feature. At that point, I was surprised anyone would need to ask to know that you couldn’t do this, but the Opinion explains that the request actually came from someone who received an email with one of these “web bugs.” Thus, the request for a definitive opinion of the wrongful nature of the conduct makes more sense. (And, for those immediately wondering, apparently some email providers do have countermeasures in place that notify you about some of these “webbugs” and that has to be how the receiving lawyer knew what had transpired.)
I think the opinion is pretty well done and reaches the obvious and correct solution. It offers some interesting discussion about how, even if the webbug were not surreptitious but actually announced itself, the use of it by the sending lawyer could still be problematic as invasive on the attorney-client relationship through, among other things, potentially revealing otherwise work-product protected information and even endangering the whereabouts of clients who are trying to stay hidden.
What intrigued me enough to write this piece though was a tangential topic that is raised a bit in a footnote to the Opinion, the ethical issues surrounding generic “read receipts” on emails. Specifically, in footnote 6, the Opinion says:
The use of “delivery receipts” and “read receipts” through Outlook and similar email services does not intrude upon the attorney’s work product or track the use of a document, and therefore is not at issue here. Those types of receipts are functionally comparable to the receipt one may receive from the use of certified mail.
That last part may well be true — that these are digitally the functional equivalents of a return receipts on certified mail — but I have a slightly different view on this topic. I certainly do not contend it is unethical for attorneys to send emails to other attorneys that include a request for a “read receipt,” but I uniformly refuse to comply when I get such “read receipt” requests, and I do so because of my obligations under the ethics rules.
If I’m getting an email only because I am an attorney representing a client, then information about when I read that email – how close to when you sent it to me or how far away from when you sent it to me – is “information related to the representation of my client,” and I see no need to do anything other than act to reasonably safeguard that information and decline the read receipt request.
I doubt anyone would ever get disciplined for doing otherwise as a violation of RPC 1.6, but I’m curious as to whether there are others reading this who conduct themselves the same way and have the same view of the “read receipt” issue.