Stealth Email Tracking By Law Firms Deemed Unethical
April 27, 2018
Stealth email tracking software, sometimes called spymail, is likely employed “in just about every marketing email you receive,” writes Mark C. Palmer. But according to an advisory opinion of the Illinois Supreme Court Commission on Professionalism, where Palmer serves as Professional Counsel, when it’s used by law firms it’s a breach of ethics. Bar associations of at least two other states – New York and Pennsylvania – have issued opinions that come to similar conclusions. The software at issue provides the sending party with a lot of information about how the email has been fielded by the recipient, including whether it’s been opened and for how long, whether embedded links were opened, and – notably – what additional IP addresses also received it. In other words, to what IP addresses it was forwarded. That could, in a hypothetical described by Palmer, reveal to the law firm some solid clues about how opposing counsel were reacting to a settlement offer. If, for example, several attorneys and the liability insurance carrier opened the email and took a good look at it, you could draw some useful conclusions.
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