Careers

Diversity, Equity & Inclusion

Experience

Innovation

Interactive Maps

Locations

About

Pages

Meet our team of innovators
Ask us how we do it

Professionals

Insights

Services

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

Home | Thompson Hine LLP

Atlanta

Chicago

Cincinnati

Cleveland

Columbus

Dayton

Los Angeles

Minneapolis

New York

Silicon Valley

Washington, D.C.

<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-2924" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2016/11/Spying-300x254.jpg" alt="Green Woman Eye and Keyhole" width="300" height="254">Alaska may have only <a href="https://lawschooltuitionbubble.wordpress.com/original-research-updated/lawyers-per-capita-by-state/">about 2,500 active resident lawyers</a>, but its bar ethics committee has become just the second authority in the country to weigh in on the practice of &ldquo;bugging&rdquo; the e-mail of opposing counsel.&nbsp; The committee disapproved of this&nbsp;spy&nbsp;method&nbsp;in an <a href="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2019/08/Alaska-Bar-Association-Ethics-Opinion-2016-1-May-a-Lawyer-Surreptitiously-Track-Emails-and-Other-Documents-Sent-to-Opposing-Counsel.pdf" target="_blank" rel="noopener">opinion </a>issued in late October, saying that it violated the&nbsp;Last Frontier&rsquo;s&nbsp;version of <a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct.html">Model Rule 8.4</a>, which prohibits dishonesty and misrepresentation.
Don&rsquo;t let this bug you
A &ldquo;<a href="https://en.wikipedia.org/wiki/Web_beacon">web bug</a>&rdquo; is a tracking device consisting of&nbsp;an object embedded in a web page or e-mail, that unobtrusively (usually invisibly) reveals whether and how&nbsp;a user has accessed the content.&nbsp; Other names for a web bug are web beacon,&nbsp;pixel tracker&nbsp; and page tag.
I had never heard of web bugs before, but apparently they are universal in the Internet world, enabling e-newsletter editors, for example, to get metrics on how many readers open the newsletter, and what pages they look at.&nbsp; But web bugs&nbsp;can be&nbsp;used for less benign ends,&nbsp;including getting a leg up on opposing counsel.
As described by the&nbsp;Alaska opinion, web-bugging&nbsp;involves placing a tiny image with a unique website address on an Internet server, and dropping a link to that image into the bugged e-mail.&nbsp; &ldquo;The image may be invisible or may be disguised as a part of the document (e.g., part of a footer.)&nbsp; When the recipient opens the document, the recipient&rsquo;s computer looks up the image and thereby sends certain information to the sending party.&rdquo;
The information available from a web bug is wide-ranging, including:
<ul>
<li>when and how many times the e-mail was opened</li>
<li>how long it was reviewed (including whether it was in the foreground or background)</li>
<li>whether the recipient opened attachments</li>
<li>how long the attachment or a particular page of the attachment was reviewed</li>
<li>whether and when the e-mail and/or attachment was forwarded</li>
<li>the approximate geographical location of the recipient</li>
</ul>
Web bugs are different than meta-data (which has been the subject of <a href="https://www.lawtechnologytoday.org/2012/06/comparison-of-metadata-ethics-opinions/">many ethics opinions</a>).&nbsp; Meta-data is automatically a part of documents created with word-processing programs, unless the user scrubs it.&nbsp; In contrast, bugging e-mail that you plan to send&nbsp;requires an affirmative act.
According to the opinion, web bugs operate surreptitiously, and &ldquo;it cannot be said with any assurance that [existing] detection programs will be consistently effective&rdquo; in detecting them.
&ldquo;Unwarranted intrusion&rdquo;
The Alaska ethics committee determined that using&nbsp;web bugs to track e-mail sent to opposing counsel &ldquo;impermissibly and unethically interferes with the lawyer-client relationship and the preservation of confidences and secrets,&rdquo; and it represents an &ldquo;unwarranted intrusion into the attorney-client relationship.&rdquo;
For instance, knowing&nbsp;how long and how often your opposing counsel has viewed a bugged&nbsp;e-mail can unlock information on how important the communication is&nbsp;deemed to be.&nbsp; In litigation, a web bugged document could provide valuable insight on which pages of a settlement agreement got the most attention.&nbsp; &ldquo;This gives the sending lawyer access to attorney-client protected information and extraordinary insight as to which sections of a document the lawyer and her client found most important,&rdquo; the committee concluded.
Using technology to accomplish such purposes, said the committee, violated Rule 8.4 even when its use is disclosed and not surreptitious.
The Alaska committee agreed with the <a href="https://nysba.org/opinion-749/" target="_blank" rel="noopener">opinion of New York State Bar Association</a>, which issued the only other analysis of the issue, in 2001.
An obvious foul
It should be self-evident to any lawyer who has taken a law-school ethics course or an ethics CLE that bugging e-mail sent to opposing counsel is dishonest.&nbsp; As technology offers more ways to obtain an improper advantage over an opponent, ethics regulators will play Whack-a-Mole in finding those methods to be&nbsp;unethical.&nbsp; But it&rsquo;s discouraging that such efforts are even needed.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

You can’t spy on opposing counsel by “bugging” their e-mail, ethics opinion says