We’re in a privilege state of mind this month. Last week, we blogged about the Washington State Supreme Court’s ruling that privilege no longer applies to post-employment communication. This week, we head farther north to Alaska, where the Alaska Bar Association Ethics Committee slapped “web bugs” away from privilege.
In ethics opinion 2016-1, the association’s committee thoughtfully considered whether it’s ethically permissible for a lawyer to use a web bug or other tracking device to track the location and use of emails and documents sent to opposing counsel. The conclusion: No. For the committee, use of this technology tool is a clear violation of Rule 8.4 (“It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”) and possibly infringes on counsel’s ability to reasonably protect a client’s confidence or secret, per Rule 1.6.
This decision arose after a member of the Alaska Bar discovered a web bug in an email from opposing counsel. The bug’s purpose is to track key information. For example, one commercial provider can invisibly collect when and how often the email was opened, how long it was reviewed, whether attachments were opened and whether and when the email or attachment was forwarded. The provider’s client does have the option to disclose to the recipient that a web bug is at work or not. But, as the opinion states, not disclosing the bug’s presence seems to be the whole point of the product.
While some email systems and software programs can reject such emails and also notify the recipient of the bug’s presence, many are not so well equipped. The association also surmised that it will become increasingly difficult for counsel to keep up as technology rapidly evolves.
After the association approved the committee’s conclusion, the Board of Governors also adopted their opinion.
It’s worth noting that the Last Frontier is actually the second state, behind New York, to land on this opinion. And similarly, several bar associations have issued opinions on whether counsel can use forensic software to extract metadata embedded in documents received from opposing counsel.