I was recently asked if I ever used email tracking software. Initially the thought intrigued me, but I am concerned about the ethical implications. The person who told me about this technology explained that it could provide me with an advantage in settlement negotiations. Using this software, I could track how many times my emailed settlement offers were read and thus know whether my offer found any traction. If they open it once and never open it again, I know that they are really uninterested. However, if six people open it half a dozen times each, then I know that the offer is getting serious consideration. While that sounds harmless enough, alarm bells were going off in the back of my head. Should I have this advantage? Is the number of times someone opens my email attorney-client privileged information? I think it is attorney-client privileged information, and I do not think I should be privy to that information.
The most popular email tracking software currently on the market is called Sidekick. This software places a single pixel in your email. It is an imperceptible digital image that must be downloaded by the recipient’s email server. Every time the email is opened, unless the recipient rejects image downloads, the pixel gets downloaded and the software tracks that information. It is intended to be used for email marketing and sales, but there is no real restriction on its use. You could use it on anyone for any purpose.
Frankly, as a lawyer, this bothers me. While I am rather resigned to the fact that Big Brother Capitalism is always watching when I am on the internet, I am not at all comfortable knowing that opposing counsel could be counting the number of times I view his email, or, after forwarding it to my client, the number of times my client views his email. This information may seem worthless, but it is not. If opposing counsel knows that no less than five people opened his settlement offer, then he is not going to be swayed when I say, “That offer was a nonstarter.” He is going to know, through clandestine means, that his offer got some attention. For this reason, I believe that it would be unethical for lawyers to utilize this technology.
Scott Aurnou wrote an interesting article on ethical and security considerations for lawyers using email. His article can be found HERE. In discussing the American Bar Association’s Model Rules of Professional Conduct, Mr. Aurnou points out that lawyers have a duty to take “reasonable precautions” to protect emails containing a client’s protected information, but the rule “does not require that the lawyer use special security measures” if there is a “reasonable expectation of privacy.” Now that I know about the use of email tracking technology, do I need to take measures to protect against the tracking of my emails? I would argue that steps could be taken, such as adjusting my settings to not download images, but is that necessary under the model rules? Perhaps.
I do not have an answer to this question. I think it needs to be discussed. If you use email tracking in your practice, have you given the ethical issue serious consideration? If so, I would like to hear your thoughts. Please add to this discussion in the comment section below.
