Alaska Bar Association: Use of “Web Bugs” is Unethical

Alaska Bar Association recently advised that the use “web bugs” to track e-mail communications with opposing counsel violates The Alaska Code of Professional Conduct. Opinion 2016-1, describes “web bugs” as Internet surveillance tools that may inform e-mail senders of the following information:

  • whether and when the e-mail and/or attachments were opened;
  • how long recipients reviewed the e-mail and/or attachments;
  • how many times the e-mail and/or attachments were opened;
  • whether and when the e-mail and/or attachments were forwarded; and
  • the rough geographical location of the recipient.

The Opinion explains that web bugs may allow the sending lawyer to determine the undisclosed location of the opposing party or to gain insight into which sections of a settlement draft are most important to the opposing side based upon how much time is spent on various pages of a document.

Concurring with New York State Bar Association’s Opinion, the Alaska Opinion concludes that “web bugs” “impermissibly and unethically interfere with the lawyer-client relationship and the preservation of confidences and secrets,” required by Rule 1.6- Confidentiality. Thus, the Opinion advises that the use of web bugs is unethical, dishonest, and a violation of Alaska Rules of Professional Conduct Misconduct Rules 8.4(a) and 8.4 (c). Moreover, the opinion states that “even the disclosed use of a tracking device when communicating with opposing counsel” is impermissible.

To read the full opinion, click here.

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