Login | April 21, 2019

Email tracking software may violate the rules of professional conduct

Technology for Lawyers

Published: May 18, 2018

All mass email marketing companies use some form of tracking software that allows the company to see if and when the email was opened and if it was forwarded to anyone. Now several states legal ethics panels, including New York, Illinois, Pennsylvania and Alaska, have recently determined that the use of that kind of tracking software for attorneys is unethical.

These email tracking tools are a form of spyware. They are alternatively called “web bugs,” “web beacons” and “spymail.” They can tell when an email was opened, who opened it and on what type of device, how long it stayed opened, if any link in it was clicked and-- important to this ethical question—who the email was forwarded to and who of those people opened it, how long it stayed opened, etc.

Apply that to a law firm. A lawyer sends a settlement offer to another lawyer. The sending lawyer receives alerts about when the email was opened and how long it was opened, and then alerts about who it was sent to. Say by the end of the week that the sending lawyer knows which lawyers have looked at it, and so can potentially determine how seriously the offer is being considered.

Well, of course, that is all confidential, in-house, work product information that the sending lawyer has no right to. And the receiving law firm has no idea that the information was being tracked, because the spymail is embedded in the emails secretly.

Somewhat of an ethical conundrum, eh?

So some states have banned this secret tracking software. This is not to be conflated with non-secret tracking like read or delivery receipts. The states that have banned this practice have also made exceptions to MailChimp and other mass marketing email services, because these are not case- or client-specific but are just general marketing materials.

The states also have allowed some case-by-case exceptions.

But be very careful in sending secret tracking coding to another attorney. Probably not allowed.

Very nice and lengthy opinion/analysis of this that I won’t go through is here if you’re interested: http://www.lawpracticetipsblog.com/2018/04/ethics-of-e-mail-tracking-software.html.