Can a lawyer use hidden email tracking software ('spymail' or 'web bugs') when emailing other lawyers or clients?

Plain-English summary

The committee addresses whether a lawyer may secretly embed tracking software in emails to other lawyers or clients. Such software inserts an invisible image or code that activates when the email is opened and silently reports detailed information to the sender, including when and by whom the message was opened, the device used, how long the message and attachments were viewed, which pages were reviewed and how often, whether attachments were downloaded or forwarded, the address of any subsequent recipient, and the general location of devices that received forwarded messages.

The opinion concludes the undisclosed use of this software, without the recipient's informed consent, is at a minimum "dishonesty" and "deceit" under Rule 8.4(c), because it conceals that the sender is secretly monitoring the handling of the message. More fundamentally, the opinion reasons the practice covertly invades the client-lawyer relationship between the receiving lawyer and that lawyer's client, citing Alaska Bar Opinion 2016-1 examples (a tracked email revealing a client's hidden location, or revealing which pages of a settlement proposal the lawyer and client studied). The fact and details of a lawyer's communications with insurers, co-counsel, experts, and others are confidential under Rules 1.6(a) and 1.9(c)(2), so covertly capturing them is the kind of unwarranted intrusion into a privileged relationship condemned in Comment 1 to Rule 4.4(a). The opinion analogizes to surreptitious recording of calls (ABA Formal Op. 01-422; 720 ILCS 5/14-2) and to the inadvertent-transmission rule (Rule 4.4(b)), reasoning that if a lawyer must alert a sender to inadvertently received confidential information, the rules should not let lawyers obtain the same information by stealth.

The opinion holds it would be unfair, unworkable, and unreasonable to put the burden on the receiving lawyer to detect and defeat tracking software, distinguishing it from metadata, which is a universal feature lawyers are expected to understand (ABA Formal Op. 06-442). The reasonableness factors in Comment 18 to Rule 1.6 make the burden of countermeasures too high, so the most reasonable protection is to prohibit undisclosed tracking. If a lawyer wants to use tracking software with another lawyer, the opinion requires prior informed consent, sought in an email that is itself tracker-free, contains no other substantive content, and gives a clear plain-language explanation; the receiving lawyer should also get any affected client's consent. The same concerns apply with equal or greater force to emails with clients: a lawyer should never use tracking software in client correspondence without the client's informed consent and must honor a client's refusal.

In practice

Under this opinion, a lawyer may not embed undisclosed tracking software in emails to other lawyers or clients during a representation; the opinion holds the conduct violates Rule 8.4(c) and intrudes on the client-lawyer relationship protected by Rules 1.6 and 4.4. It holds the receiving lawyer is not required to acquire or maintain software to detect or block tracking, distinguishing tracking software from ordinary metadata. If a lawyer wishes to use tracking software, the opinion requires prior informed consent from the recipient (and the recipient's affected client), obtained through a tracker-free, content-free request that plainly explains the software, and it holds a client's refusal must be honored.

Common questions

Q: Can I use spymail to see if opposing counsel opened my email and read the attachment?

A: No, not without consent. The opinion concludes undisclosed email tracking is dishonest and deceitful under Rule 8.4(c) and invades the client-lawyer relationship, so the sender must obtain informed consent first.

Q: Do I have to buy software to detect tracking in emails I receive?

A: No. The opinion holds it would be unfair and unworkable to require receiving lawyers to detect or defeat tracking software, distinguishing it from metadata that lawyers are expected to understand.

Q: Is using tracking software with my own client different?

A: The opinion says the concerns apply with equal or greater force to clients; a lawyer should never use tracking software in client emails without the client's informed consent and must honor a refusal.

Background and rules framework

The opinion interprets Illinois Rule of Professional Conduct 8.4(c) (dishonesty, fraud, deceit, or misrepresentation), Rule 1.6 (confidentiality, including 1.6(e) and Comment 18), Rule 4.4 (respect for the rights of third persons, including 4.4(a) intrusions into privileged relationships and 4.4(b) inadvertent transmissions), and Rule 1.1 (competence and technology, Comment 8). These correspond to Model Rules 8.4, 1.6, 4.4, and 1.1.

Citations and references

Rules:

• Illinois RPC 8.4(a), (c) (MR 8.4): dishonesty and deceit
• Illinois RPC 1.6(a), (e) and Comment 18; 1.9(c)(2) (MR 1.6, 1.9): confidentiality
• Illinois RPC 4.4(a) and Comment 1; 4.4(b) (MR 4.4): rights of third persons and inadvertent transmission
• Illinois RPC 1.1 and Comment 8 (MR 1.1): technology competence

Statutes:

• 720 ILCS 5/14-2(a)(2): Illinois eavesdropping statute (non-consensual recording)

Other opinions cited:

• Alaska Bar Op. 2016-1; ABA Formal Op. 01-422 (recording calls); ABA Formal Op. 06-442 (metadata); ISBA Ops. 98-04 and 95-10 (inadvertent disclosure and "sharp practice")

See also

• NY State Bar Op. 749: Tracking Metadata in Email and Electronic Documents
• NY State Bar Op. 782: Metadata in Emailed Documents
• NYC Bar Op. 2019-3: Obligations Regarding Inadvertently Sent Information

Source

• Landing page: https://www.isba.org/ethics/opinions/1801