Two quick technology takes – texting and more on email “bugs”

Not too long ago, I weighed in on an Alaska Ethics Opinion about the ethics of lawyers using email “bugs” that surreptitiously track what happens to an email after it has been sent.  There is a new, interesting read on the “legal or not” aspect of this technology in the ABA/BNA Lawyers Manual on Professional Conduct authored by Chad Gilles, a former lawyer who is now involved with customer strategy and legal affairs with a company called MailControl.net.  It certainly makes for an interesting and informative read, and I appreciate the short mention of a snippet of what I said here on my blog.  I was surprised in the Gilles article to read that Professor Dane Ciolino of Loyola University New Orleans had espoused a belief that it was ethical to use such technology if you were a sending lawyer and, for what it is worth, I’ve now gone and read Ciolino for myself on the issue  and … well, color me still unconvinced.

For what it is worth, the notion that Gilles explains that the jury is out on whether the conduct — using mail bugs — also runs afoul of one or more federal statutes (think the Electronic Communications Privacy Act and the Computer Fraud and Abuse Act) leaves me more confident that my conclusion that the conduct is unethical is on the right side of things.

On an unrelated note — other than being related by way of the broadly encompassing “technology” category — Thomas Spahn and I will be doing a teleseminar on January 20, 2017 focusing specifically on a variety of ethical issues that can arise in connection with lawyers using text messaging to communicate with clients and each other.  I haven’t been fortunate enough to do a seminar with Tom in a few years and am looking forward to discussing this topic with him.

I’ve also spent a little bit of time — unsuccessfully — trying to re-find a case/situation that was reported on within the last couple of years involving a lawyer who saw part of the contents of a text sent to a judge because the judge’s phone was laying out on the bench and it lit up and the first part of the message was viewable.  I can’t remember if it was the lawyer who got in trouble for the snooping or the judge because of what was on the text, but I remember it happening.  It serves as a great teaching tool for thinking about turning off the “preview” function for texts on your smart phone, but only if I can properly reference it.

If anyone reading this, recalls it or is more proficient at finding it before January 20, I’d appreciate you shooting me a message of where to find it.  And, either way, if you have the time please feel free to sign up for our teleseminar — it is being offered through a variety of bar entities so you should be able to find it with a google search, but here’s a link to one state bar where you can sign up for it.

 

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