United States: Electronic Discovery & Information Governance - Tip Of The Month: Illinois Ethics Guidance Warns Against Lawyers' Use Of Snooping Software

Scenario

An Illinois-based technology company is in settlement negotiations to resolve a lawsuit. The company's general counsel is considering using email tracking software in electronic communications with opposing counsel to determine when counsel opens any email attachments—such as a draft settlement agreement—and how much time opposing counsel spends reviewing each page of those attachments. Before moving ahead, the general counsel wants to know whether this use of email tracking software violates any professional conduct guidance.

State Bars See Ethical Perils in Email Tracking Software

Email tracking software has been earning the ire of an increasing number of state bar associations. The Illinois State Bar Association issued a Professional Conduct Advisory Opinion in January 2018 in which it concluded that a lawyer may not use this software in electronic communications with other lawyers or clients without first getting the consent of all recipients, citing threats to the attorney-client relationship and other ethical concerns.

The Illinois opinion followed similar conclusions reached by the state bar associations of Alaska, New York, and Pennsylvania, bringing the tally to at least four states that have found lawyers' use of email tracking software under various circumstances to be ethically impermissible.

What Is Email Tracking Software?

The Illinois opinion considered software applications that allow an email's sender to covertly monitor how recipients handle the email and its attachments. This tracking software will typically insert an invisible image or code into an email message, and the recipient will unknowingly activate that image or code upon opening the email.

The software then provides the email sender with information that may include:

  • when the email was opened;
  • the kind of device used to open it;
  • how long the email was open;
  • whether and what attachments were opened or downloaded;
  • how long any attachments were opened;
  • whether, when and to whom the email or attachments were forwarded; and
  • the "general geographic location" of whatever device received the forwarded materials.

The Illinois State Bar Association specified that it was not concerned with the "read receipt" function offered by many email applications. That function lets an email recipient notify the sender of receipt. But by not providing information about what happens to an email after receipt, a read receipt does not present the same ethical issues as other tracking functions, according to the Illinois opinion.

Dishonesty and Deceit

The Illinois State Bar Association found that, at a minimum, the undisclosed, concealed use of email tracking software by a lawyer amounts to "dishonesty" and "deceit" under Rule 8.4 of the Illinois Rules of Professional Conduct, which provides that it is professional misconduct to "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."

"Any competent lawyer receiving an email from an opposing counsel would obviously wish to know that the opposing counsel is acquiring instantaneous and detailed private information concerning the opening and subsequent handling of the email and its attachments," the Illinois opinion recognized.

Invading the Attorney-Client Relationship

The undisclosed use of email tracking software also carries implications for attorney-client relationships. In examples cited in both the Alaska and Illinois opinions, a lawyer's surreptitious use of this software in email correspondence with another lawyer, while representing a client, would invade the relationship between the receiving lawyer and that recipient's client.

One example involved a client who had moved and did not want to disclose where she was now living. Email tracking software could enable opposing counsel to email that client's lawyer an attached document for the client's signature and would uncover the client's general location when she opened the forwarded email with that document.

In another example, the Alaska and Illinois bar associations both noted that using this software provides the sending lawyer with access to "protected information and extraordinary insight as to which sections of a document the lawyer and her client found most important."

Further, the Illinois State Bar Association found that communications between a receiving lawyer and insurers, co-counsel, co-clients, experts, investigators, accountants and other consultants involved in the matter can also result in intrusion into a lawyer's client representation. Illinois Rules 1.6(a) and 1.9(c)(2) protect the details of those communications—which qualify as confidential information related to a client representation—from disclosure by the lawyer, the Illinois opinion explained. Secretly obtaining that information should therefore be considered "an unwarranted intrusion in the client-lawyer relationship," according to that opinion. Here, the Illinois State Bar Association pointed to Illinois Rule 4.4(a), which bars a lawyer from using methods of obtaining evidence that violate a third person's legal rights.

Contrary to Rationale of Rule on Inadvertent Disclosures

Approving the undisclosed use of email tracking software would also violate the rationale of Illinois Rule 4.4(b), which requires lawyers who receive confidential client information and know that the information was inadvertently sent to promptly notify the sender to allow that person to take protective measures. The Illinois Rules should not allow a lawyer to obtain that same kind of information by stealth, the opinion said.

The Illinois State Bar Association has also concluded that a lawyer who finds out that opposing counsel has inadvertently transmitted confidential information, and learns this before opening the transmitted materials, should return those materials without examining them. The January 2018 opinion explained that if reading those inadvertently disclosed materials is improper, then it must also be improper for a lawyer to collect that information using undisclosed tracking software.

Key Takeaways

While finding the covert use of this software impermissible, the Illinois State Bar Association acknowledged that there does not appear to be any generally available, reliable program that can detect and defeat the use of tracking software. It also would be unworkable to force all lawyers in Illinois to keep tabs on various tracking programs as they become available and then immediately buy and install defensive software or devices—should they become available—to protect themselves, the Illinois opinion explained.

The Illinois State Bar Association directed that lawyers wanting to use tracking software when emailing another lawyer in connection with a client representation must first receive the informed consent of the receiving lawyer and any affected client. According to the Illinois opinion, an email seeking that consent must:

  • Not contain tracking software;
  • Contain no other substantive content; and
  • Provide a "clear, explicit, and non-technical plain language explanation" regarding the features of the specific software that the lawyer wants to use.

Lawyers must also obtain the informed consent of their own clients to be able to use tracking software in communications with them, the Illinois opinion directed.

Originally published 31 May 2018

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© Copyright 2018. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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