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Don't Use 'Web Bugs' to Track Email From Opposing Counsel

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By William Vogeler, Esq. on November 30, 2016 5:59 AM

Remember that email from the wealthy Ethiopian offering to send you $1 million to do a legal transaction?

Hopefully, you didn't respond or open an attachment from some similarly scary source. Not that we lawyers would ever fall for this type of scam, but I am here to tell you there are attorneys out there who send equally pernicious email. And they don't even offer to pay you money!

Web Bugs Are Clearly Unethical

"Web bugs" are electronic tracking programs that can be sent with email to gather information from the recipient. The retrieved data may include when and how often an email was opened, how long it was reviewed, how long an attachment was reviewed, whether the email or attachment was forwarded, and the rough geographical location of the recipient. In the paraphrased words of an Alaska Bar Association ethics opinion, gathering data with web bugs is just wrong.

"Tracking electronic communications with opposing counsel through 'web bugs' impermissibly and unethically interferes with the lawyer-client relationship and the preservation of confidences and secrets," the opinion says. "Doing so reflects, at a minimum, the lack of straightforwardness that is a hallmark of dishonest conduct."

It is the second ethics opinion on the subject. The New York State Bar Association also found that web bugs are not ethically permissible.

"Although our jurisdiction does not extend to questions of law, we note that the misuse of some aspects of this technology, particularly the use of e-mail 'bugs,' may violate federal or state law prohibiting unauthorized interception of e-mail content," the New York opinion says.

Opposing Counsel Make Strange Bedfellows

The bar associations cited various examples of how opposing counsel could compromise laws and ethics by sending web bugs. Infected by such tracking technology, an unsuspecting lawyer may unknowingly reveal the location of his or her client by forwarding a web-bugged email. The web bug could also disclose what pages of a contract were most interesting to the reviewing lawyer who got the web bug.

According to the ABA Journal, reporting on the ethics opinions, lawyers should not use web bugs in their email to opposing counsel. No mention about using web bugs internally.

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