United States: Electronic Discovery & Information Governance - Tip Of The Month: Illinois Ethics Guidance Warns Against Lawyers' Use Of Snooping Software


An Illinois-based technology company is in settlement negotiations to resolve a lawsuit. The company's general counsel is considering using email tracking software in electronic communications with opposing counsel to determine when counsel opens any email attachments—such as a draft settlement agreement—and how much time opposing counsel spends reviewing each page of those attachments. Before moving ahead, the general counsel wants to know whether this use of email tracking software violates any professional conduct guidance.

State Bars See Ethical Perils in Email Tracking Software

Email tracking software has been earning the ire of an increasing number of state bar associations. The Illinois State Bar Association issued a Professional Conduct Advisory Opinion in January 2018 in which it concluded that a lawyer may not use this software in electronic communications with other lawyers or clients without first getting the consent of all recipients, citing threats to the attorney-client relationship and other ethical concerns.

The Illinois opinion followed similar conclusions reached by the state bar associations of Alaska, New York, and Pennsylvania, bringing the tally to at least four states that have found lawyers' use of email tracking software under various circumstances to be ethically impermissible.

What Is Email Tracking Software?

The Illinois opinion considered software applications that allow an email's sender to covertly monitor how recipients handle the email and its attachments. This tracking software will typically insert an invisible image or code into an email message, and the recipient will unknowingly activate that image or code upon opening the email.

The software then provides the email sender with information that may include:

  • when the email was opened;
  • the kind of device used to open it;
  • how long the email was open;
  • whether and what attachments were opened or downloaded;
  • how long any attachments were opened;
  • whether, when and to whom the email or attachments were forwarded; and
  • the "general geographic location" of whatever device received the forwarded materials.

The Illinois State Bar Association specified that it was not concerned with the "read receipt" function offered by many email applications. That function lets an email recipient notify the sender of receipt. But by not providing information about what happens to an email after receipt, a read receipt does not present the same ethical issues as other tracking functions, according to the Illinois opinion.

Dishonesty and Deceit

The Illinois State Bar Association found that, at a minimum, the undisclosed, concealed use of email tracking software by a lawyer amounts to "dishonesty" and "deceit" under Rule 8.4 of the Illinois Rules of Professional Conduct, which provides that it is professional misconduct to "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."

"Any competent lawyer receiving an email from an opposing counsel would obviously wish to know that the opposing counsel is acquiring instantaneous and detailed private information concerning the opening and subsequent handling of the email and its attachments," the Illinois opinion recognized.

Invading the Attorney-Client Relationship

The undisclosed use of email tracking software also carries implications for attorney-client relationships. In examples cited in both the Alaska and Illinois opinions, a lawyer's surreptitious use of this software in email correspondence with another lawyer, while representing a client, would invade the relationship between the receiving lawyer and that recipient's client.

One example involved a client who had moved and did not want to disclose where she was now living. Email tracking software could enable opposing counsel to email that client's lawyer an attached document for the client's signature and would uncover the client's general location when she opened the forwarded email with that document.

In another example, the Alaska and Illinois bar associations both noted that using this software provides the sending lawyer with access to "protected information and extraordinary insight as to which sections of a document the lawyer and her client found most important."

Further, the Illinois State Bar Association found that communications between a receiving lawyer and insurers, co-counsel, co-clients, experts, investigators, accountants and other consultants involved in the matter can also result in intrusion into a lawyer's client representation. Illinois Rules 1.6(a) and 1.9(c)(2) protect the details of those communications—which qualify as confidential information related to a client representation—from disclosure by the lawyer, the Illinois opinion explained. Secretly obtaining that information should therefore be considered "an unwarranted intrusion in the client-lawyer relationship," according to that opinion. Here, the Illinois State Bar Association pointed to Illinois Rule 4.4(a), which bars a lawyer from using methods of obtaining evidence that violate a third person's legal rights.

Contrary to Rationale of Rule on Inadvertent Disclosures

Approving the undisclosed use of email tracking software would also violate the rationale of Illinois Rule 4.4(b), which requires lawyers who receive confidential client information and know that the information was inadvertently sent to promptly notify the sender to allow that person to take protective measures. The Illinois Rules should not allow a lawyer to obtain that same kind of information by stealth, the opinion said.

The Illinois State Bar Association has also concluded that a lawyer who finds out that opposing counsel has inadvertently transmitted confidential information, and learns this before opening the transmitted materials, should return those materials without examining them. The January 2018 opinion explained that if reading those inadvertently disclosed materials is improper, then it must also be improper for a lawyer to collect that information using undisclosed tracking software.

Key Takeaways

While finding the covert use of this software impermissible, the Illinois State Bar Association acknowledged that there does not appear to be any generally available, reliable program that can detect and defeat the use of tracking software. It also would be unworkable to force all lawyers in Illinois to keep tabs on various tracking programs as they become available and then immediately buy and install defensive software or devices—should they become available—to protect themselves, the Illinois opinion explained.

The Illinois State Bar Association directed that lawyers wanting to use tracking software when emailing another lawyer in connection with a client representation must first receive the informed consent of the receiving lawyer and any affected client. According to the Illinois opinion, an email seeking that consent must:

  • Not contain tracking software;
  • Contain no other substantive content; and
  • Provide a "clear, explicit, and non-technical plain language explanation" regarding the features of the specific software that the lawyer wants to use.

Lawyers must also obtain the informed consent of their own clients to be able to use tracking software in communications with them, the Illinois opinion directed.

Originally published 31 May 2018

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2018. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions