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Lawyers may not use 'web bugs' to track email sent to opposing counsel, ethics opinion says

Lawyers should not plant “web bugs” to track the location and use of emails sent to opposing counsel, according to an Alaska ethics opinion.





The Alaska Bar Association Ethics Committee is the second bar panel to address the issue, according to the ABA BNA Lawyers’ Manual on Professional Conduct. An ethics opinion by the New York State Bar Association also found web bugs are not ethically permissible.

The Oct. 26 opinion by the Alaska ethics committee said web bugs in emails can track a variety of information. They can be used to learn 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.

Web bugs can be placed in email through an image with a unique website address that causes the recipient’s computer to look up the image and send information to the sending party, the ethics opinion explains.

Web bugs can reveal information that interferes with the lawyer-client relationship and the preservation of client confidences, the ethics opinion said. Seeking to invade the lawyer-client relationship through web bugs, even if the web bug is disclosed, violates ethics rules barring lawyers from engaging in misrepresentation and deceit, according to the opinion.

The ethics opinion provides two examples of how web bugs can intrude on the attorney-client relationship. In the first, a client has informed her lawyer she has moved to another state, but she doesn’t want her location disclosed. An email with a web bug contains a page for the client’s signature, and the receiving lawyer forwards the document to the client, revealing information about the client’s location to the lawyer who planted the bug.

In the second example, a lawyer planting a web bug sends a draft settlement agreement to opposing counsel. The opposing counsel forwards the agreement to his client. The web bug enables the sending lawyer to determine which pages the lawyer and client found most important.