The Alaska Bar Association recently released a new ethics opinion on so-called “web bugs” — electronic trackers placed in email to allow the sender to see (among other things) where the recipient forwarded the email and how long the email was reviewed. In the scenario that gave rise to the opinion, an Alaska Bar member had received an email with a web bug from opposing counsel. Although the recipient discovered the web bug, the apparent intent was to track the information secretly. The recipient asked the Alaska Bar about the propriety of using web bugs. The Alaska Bar in Ethics Opinion 2016-1 concluded that the use of web bugs is improper. The opinion is available on the Alaska Bar website.
The Alaska Bar’s analysis in Opinion 2016-1 turns primarily on Alaska RPC 8.4(c), which like its ABA and Washington counterparts, prohibits conduct involving “dishonesty, fraud, deceit or misrepresentation.” The Alaska Bar concluded that secretly using a web bug to learn about an email’s use by opposing counsel and/or an opposing party constitutes an impermissible form of deception under Alaska RPC 8.4(c). Apparently in an effort to draw a “bright line,” the opinion also concludes that even the disclosed use of web bugs is a dishonest attempt to invade another party’s attorney client relationship and, therefore, also violates Alaska RPC 8.4(c). In light of those twin conclusions, the opinion finds that a lawyer-recipient does not have an affirmative duty under Alaska RPC 1.6(c), which requires lawyers to make reasonable efforts to safeguard confidential information and is similar to its ABA and Washington counterparts and to proactively use electronic countermeasures. The opinion also distinguishes its conclusions from the use of disclosed read receipts, that are common on many standard email programs, likening read receipts to certified mail.
Although Washington does not have an analogous opinion, WSBA Advisory Opinion 2216 addresses the somewhat reminiscent topic of data-mining electronic documents received from an opposing counsel for electronic metadata in an effort to discover information that would ordinarily have been scrubbed through routine practices available in standard commercial office software. The Washington opinion concluded that such efforts are impermissible under RPC 4.4(a), which prohibits “‘us[ing] methods of obtaining evidence that violate the legal rights of [third persons].’” Washington’s approach with metadata highlights another risk for a lawyer thinking of secretly using a web bug to spy on an opposing counsel or opposing party. Decisional law from both Washington’s federal (see, e.g., Richards v. Jain, 168 F. Supp.2d 1195 (W.D. Wash. 2001)) and state appellate (see, e.g., Foss Maritime Co. v. Brandewiede, 190 Wn. App. 186, 359 P.3d 905 (2015)) courts generally takes the approach that the improper invasion of an opponent’s privilege or otherwise confidential information may put the intruder at risk of being disqualified as a litigation sanction.