EVOLUTION OF PROFESSIONALISM IN THE PRACTICE OF LAW

Judge Marilyn CastleLPBA CLE Presentation

December 15, 2016

The debate over the practice of law as a business versus a profession has been on-going for a century.

The following is an excerpt from a 1908 Yale Law Journal Article:

The Law. A Business or a Profession?

Champ S. Andrews The Yale Law Journal Vol. 17, No. 8 (Jun., 1908), pp. 602-610 Published by: The Yale Law Journal Company, Inc.

Washington University Law Review -January, 1926

“The Law:—Business or Profession,” ByJulius Henry Cohen

Since in our country a lawyer is an officer of the court, high standards are necessary. Mr. Cohen points out that business is daily becoming more like a profession, that the old methods under which "railroad presidents had no law of either state or nation to bother them, and could be both the law and profits unto themselves "are passing, and that the business man is building up an ethical code. Well then, should not the lawyer also strain to build up and then up-hold professional standards? …American lawyers have seen the stain upon their professional honor and are doing much through their Bar Associations to remove that stain.

THE LOUISIANA EXPERIENCE

The requirement for Continuing Legal Education in Louisiana did not come into existence until January 1, 1988. The rule required 15 hours of CLE. "Of the fifteen (15) hours of CLE required annually, not less than one of such hours shall concern legal ethics, professional responsibility, and rules of conduct."

A May 23, 1997 order of the Louisiana Supreme Court amended Rule 3(c) of the Rules for Continuing Legal Education to add professionalism as a required CLE topic: " The Order also provided: Legal ethics concerns the standard of professional conduct and responsibility required of a lawyer. It includes courses on professional responsibility and malpractice. It does not include such topics as attorneys' fees, client development, law office economics, and practice systems, except to the extent that professional responsibility is discussedin connection with these topics.

Professionalism concerns the knowledge and skill of the law faithfully employed in the service of client and public good, entails what is more broadly expected of attorneys. It includes courses on the duties of attorneys to the judicial system, courts, public, clients, and other attorneys; attorney competency; and pro bono obligations.

Legal ethics sets forth the standards of conduct required of a lawyer; professionalism includes what is more broadly expected. The professionalism CLE requirement

is distinct from, and in addition to, the legal ethics CLE requirement.

LAWYER’S RESPONSIBILITY AS AN OFFICER OF THE COURT

The Louisiana Code of Professionalism was authored by the Professionalism and Quality of Life Committee of the Louisiana State Bar Association in 1991. It was adopted by the Louisiana State Bar Association House of Delegates and approved by the Supreme Court of Louisiana in January 1992.

The Code of Professionalism

My word is my bond.

I will never intentionally mislead the court or other counsel. I will not knowingly make statements of fact or law that are untrue. I will clearly identify for other counsel changes I have made in

documents submitted to me. I will conduct myself with dignity, civility, courtesy and a sense of

fair play. I will not abuse or misuse the law, its procedures or the

participants in the judicial process. I will consult with other counsel whenever scheduling procedures

are required and will be cooperative in scheduling discovery, hearings, the testimony of witnesses and in the handling of the entire course of any legal matter.

I will not file or oppose pleadings, conduct discovery or utilize any course of conduct for the purpose of undue delay or harassment of any other counsel or party. I will allow counsel fair opportunity to respond and will grant reasonable requests for extensions of time.

I will not engage in personal attacks on other counsel or the court. I will support my profession's efforts to enforce its disciplinary rules and will not make unfounded allegations of unethical conduct about other counsel.

I will not use the threat of sanctions as a litigation tactic.

I will cooperate with counsel and the court to reduce the cost of litigation and will readily stipulate to all matters not in dispute.

I will be punctual in my communication with clients, other counsel and the court, and in honoring scheduled appearances.

The Code of Professionalism in the Courts

                                                                     PREAMBLE The following standards are designed to encourage us, the judges and lawyers, to meet our obligations to each other, to litigants and to the system of justice, and thereby achieve the twin goals of professionalism and civility, both of which are hallmarks of a learned profession dedicated to public service. These standards shall not be used as a basis for litigation or sanctions or penalties. Nothing in these standards alters or detracts from existing disciplinary codes or alters the existing standards of conduct against which judicial or lawyer negligence may be determined. However, these standards should be reviewed and followed by all judges of the State of Louisiana. Copies may be made available to clients to reinforce our obligation to maintain and foster these standards.                                                JUDGES' DUTIES TO THE COURT We will be courteous, respectful, and civil to lawyers, parties, and witnesses. We will maintain control of the proceedings, recognizing that judges have both the obligation and authority to insure that all litigation proceedings are conducted in a civil manner. We will not employ hostile, demeaning, or humiliating words in opinions or in written or oral communications with lawyers, parties, or witnesses. We will be punctual in convening all hearings, meetings, and conferences; if delayed, we will notify counsel, if possible. We will be considerate of time schedules of lawyers, parties, and witnesses in scheduling all hearings, meetings and conferences. We will make all reasonable efforts to decide promptly all matters presented to us for decision. We will give the issues in controversy deliberate, impartial, and studied analysis and consideration.

 While endeavoring to resolve disputes efficiently, we will be considerate of the time constraints and pressures imposed on lawyers by the exigencies of litigation practice. We recognize that a lawyer has a right and a duty to present a cause fully and properly, and that a litigant has a right to a fair and impartial hearing. Within the practical limits of time, we will allow lawyers to present proper arguments and to make a complete and accurate record. We will not impugn the integrity or professionalism of any lawyer on the basis of clients whom or the causes which a lawyer represents. We will do our best to insure that court personnel act civilly toward lawyers, parties, and witnesses. We will not adopt procedures that needlessly increase litigation expense. We will bring to lawyers' attention uncivil conduct which we observe. We will be courteous, respectful, and civil in opinions, ever mindful that a position articulated by another judge is the result of that judge's earnest effort to interpret the law and the facts correctly. We will abstain from disparaging personal remarks or criticisms, or sarcastic or demeaning comments about another judge in all written and oral communications. We will endeavor to work with other judges in an effort to foster a spirit of cooperation in our mutual goal of enhancing the administration of justice.                                             LAWYERS' DUTIES TO THE COURTS We will speak and write civilly and respectfully in all communications with the court. We will be punctual and prepared for all court appearances so that all hearings, conferences, and trials may commence on time; if delayed, we will notify the court and counsel, if possible. We will be considerate of the time constraints and pressures on the court and court staff inherent in their efforts to administer justice. We will not engage in any conduct that brings disorder or disruption to the courtroom. We will advise our clients and witnesses appearing in court of the proper conduct expected and required there and, to the best of our ability, prevent our clients and witnesses from creating disorder or disruption. We will not knowingly misrepresent, mischaracterize, misquote, or miscite facts or authorities in any oral or written communication to the court. We will not engage in ex parte communication on any pending action.

 We will attempt to verify the availability of necessary participants and witnesses before dates for hearings or trials are set, or if that is not feasible, immediately after such date has been set, so we can promptly notify the court of any likely problems. We will act and speak civilly to court marshals, clerks, court reporters, secretaries, and law clerks with an awareness that they too, are an integral part of the judicial system.

12/10/2012

The Professional versus the Business Model in Law and Medicine—Richard Posner

The professional model in law began to wane in the 1970s, with the beginning of the deregulation movement, which loosened restrictions on competition in legal services. The trend continued in subsequent decades, and was marked by an increased spread in earnings within law firms, an increased dispersion in the size of law firms, and increased turnover—in particular, the tendency of successful lawyers to move from firm to firm (taking their clients with them) in quest of higher incomes. Today, law firms closely resemble business firms. I am speaking mainly of law firms that handle corporate business, not of criminal or tort lawyers, who tend to practice by themselves or in small firms.  

Corporate lawyers today don’t want just a comfortable upper-middle-class income; they want to be rich; and one reason is the increased risk they face. Few law firms (remember that I’m talking only about corporate-law firms) any more practice “lockstep” compensation, in which all partners of the same vintage in a firm are paid the same—a risk-minimizing method of compensation that used to be the norm in large law firms. Today a lawyer faces the risk, if his productivity declines, of seeing his income decline, or indeed of being pushed out of

the firm altogether; and to cushion that risk, naturally he wants to earn as much as he can while he can. 

Once the legal and ethical limits on lawyer competition are relaxed, the underlying riskiness of law firm practice is unchained. That riskiness lies in the fact that, like banks though less dramatically, law firms’ capital is short term but their assets are long term. The principal capital is human capital—the most successful partners and their clients—and that capital is short term; a partner can leave the firm, clients in tow, with little or no notice. This can cause a run on the firm, as happened in the collapse of the previously very successful Dewey LeBoeuf firm, because its assets, including its accounts receivable and future clients (corresponding to a bank’s loans), cannot be liquidated at a moment’s notice to match the firm’s assets to its shrinking capital and its fixed debt. 

The market response to the transition of the legal services industry from a profession to a business has been increased vigilance by corporate house counsel, who are expert monitors of legal services, and a related trend toward business firms’ bringing legal business in house, where direct supervision of the lawyers handling it is feasible. Are these adequate substitutes for the ethical and regulatory restraints that define a profession? And if not are the costs offset by increased competitiveness? I don’t know the answer to the first question, but I am skeptical with regard to the second. Even if the business model is more efficient, it is unclear that efficiency in corporate law is a public good. The reason is the adversary nature of corporate law, not only in litigation but also in negotiation of deals, structuring of transactions, and coping with regulation. If there are good lawyers on both sides of a case, the aggregate costs of litigation are higher, and the benefits to judge and jury of a more vigorous and informed adversary process generally quite modest. If private lawyers with a regulatory practice are abler, the regulatory agency needs to hire abler lawyers, and so the cost of regulation increases, though there may be a net gain in the quality of regulation. And do abler lawyer on both sides of a deal negotiate a better deal in a social sense, or simply increase the costs of negotiation? 

Duke Law Journal VOLUME 63 MARCH, 2014 NUMBER 6 OUT OF PRACTICE: THE TWENTY-FIRST-CENTURY LEGAL PROFESSION DANA A.REMUS†

Lawyering has changed dramatically in the past century, but scholarly and regulatory models have failed to keep pace. These models ignore significant and expansive social dynamics that broadened and blurred the boundary between law and business. Within the resulting quasi-legal zone, lawyers and their clients can promote ambiguity about the nature of lawyers’ work and ethical obligations. Corporate clients can then leverage lawyers in different roles and subject to different ethical obligations to their advantage. These changes have eliminated balance in the profession’s tripartite orientation toward clients, the state, and the public. In its place, they have allowed the corporate sector to derive a disproportionate share of the benefits from the profession’s monopoly while the state and the public bear a disproportionate share of the burdens. Eliminating professional regulation would only exacerbate this imbalance. Instead, we should recalibrate professional regulation to address the particular challenges faced by licensed lawyers in quasi-legal roles. There is room as well as need for broad ethical principles, context-specific regulations, and better rules governing moves among contexts.

Although neither existing model is alone sufficient, both offer important insights. By combining the two models, the profession can address the risks of harm arising at the profession’s edges. It can take an important step in codifying and enforcing the profession’s

highest aspirations, and in allowing the public and the state to extract the full benefit of the bargain of professional regulation. Accordingly, instead of focusing exclusively on factors that draw licensed lawyers apart, as the current literature does, we should begin the difficult discussions of what core principles bind licensed lawyers together.

Avvo.com Website

Forms, $39 for 15 minutes, free answers to some questions

Avvo Inc., an online service helping people find lawyers, aims to provide fixed-fee legal services to customers in a new service, called Avvo Legal Services (ALS). Like Avvo Advisor, ALS users pay upfront for access to a lawyer. But rather than ask legal questions over the telephone, the new service offers users a method to select a lawyer willing and able to complete a prescribed legal task.

Lawyers who register for ALS choose their jurisdiction and practice area, be it business, family or immigration law, and select the discrete services they want to offer. Avvo calculates prices and defines the services, such as reviewing a consulting or prenuptial agreement ($149), starting a single-member LLC ($595), or filing an uncontested divorce ($995).

Avvo customers purchase the prescribed legal services, choose the lawyer they want to work with, and pay upfront the price of the service. The selected lawyer completes the service for the client and gets paid the full legal fee. In a separate transaction, the attorney pays Avvo a per-service marketing fee for the service.

Although Avvo’s service sounds like a lawyer referral service, it’s not. The Seattle-based company is not referring people to particular lawyers.

Avvo customers select a lawyer from the pool of participating lawyers. It’s not fee-splitting either, but it can be hair-splitting.

When prescribed work is complete, Avvo deposits entire client payments into participating lawyers’ operating accounts monthly. In separate transactions, Avvo debits the operating accounts a per-service marketing fee. “Fee splits are not inherently unethical,” said Josh King, Avvo’s general counsel. “They only become a problem if the split creates a situation that may compromise a lawyer’s professional independence of judgment.”

Like credit card fees, King believes that Avvo’s marketing fee would not create the potential for compromised judgment. ALS is similar to Avvo Advisor, which has operated in Arizona, California, Colorado, Florida, Georgia, Illinois, Massachusetts, Maryland, Michigan, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Texas, Virginia, Washington, and Wisconsin, without complaint.

Registered lawyers can use their own retainer agreement but it should align with Avvo’s Legal Services Terms for the fixed fee service. If an Avvo customer is not a good fit for a selected lawyer, the lawyer can decline to provide services by emailing to services@avvo.com. On the other side of the coin, Avvo encourages its registered lawyers to continue their professional contact with the fixed-fee clients beyond the initial purchase and service.

Fixed fees are not a new business model for attorneys. I have done my share with mixed results. State bar referral programs have successfully offered fixed-fee legal services for limited income residents in well-defined areas, such as no-fault and uncontested divorce actions. But fixed fees are not a business model to start a practice.

Usually an attorney new to a practice area will not have the requisite expertise to complete a client’s task within the boundary of time and labor defined by the prescribed fee less the marketing fee. Although it may seem like a good way to retain clients in a new area, the potential

clients are looking for attorneys who can quickly dispatch their defined work, which by definition is not recurring work. Delays in dispatching prepaid work will frustrate clients and leave attorneys with a bad Avvo review, which can cause their expulsion from the fixed-fee program, according to the terms of service.

But if you’re an experienced attorney in business, family or immigration law and feel confident you can competently complete certain fixed-fee services, the monthly check can augment your income and the new clients can become long-term customers who come back to you for other services or refer your practice to their family and friends.

Like the fixed-fee bar referral programs, ALS sounds like a winner for the right lawyers. But it will require a well-defined customer intake process to ensure a prospective client’s needs fall within the prescribed limits of service for registered attorneys to perform for a sum certain.

LegalZoom resolves $10.5M antitrust suit against North Carolina State BarPosted Oct 23, 2015 03:15 pm CDT

By Terry Carter

LegalZoom has settled its protracted legal dispute with the North Carolina State Bar with a consent agreement that permits the company to continue operating there, Forbes reports. The online legal document company has been expanding quickly to provide other services, including prepaid legal services plans.

The agreement comes on the heels of a lawsuit against the bar filed in federal court in North Carolina in June, seeking $10.5 million in antitrust

damages. LegalZoom’s suit was based on a U.S. Supreme Court antitrust ruling earlier this year against the state’s self-regulating body for dentists, which had come down on teeth whitening by non-dentists.

The state bar has battled the company since 2008, after first clearing it to operate there in 2003. Legal challenges in other states had fallen away over the years, with only North Carolina’s continuing.

Under the agreement, LegalZoom will vet its documents with North Carolina lawyers, and inform its customers that the blank templates aren’t a substitute for in-person advice from an attorney. The state bar also agrees to support proposed legislation that would clarify the definition of “unauthorized practice of law,” which currently is open to various interpretations and was used by the bar to challenge LegalZoom. Both parties agreed to support legislation permitting interactive legal-help websites, so long as they abide by the basic terms of the settlement agreement.

LegalZoom says the agreement is on terms it sought in 2011, but claims that the bar wouldn’t budge at the time. “At the time, they said no, but in the past few months they kicked it up,” Kenneth Friedman, LegalZoom’s vice president for government relations, told Forbes.

The company is now looking to offer more services to consumers and small businesses, according to a feature in the ABA Journal last year, including routine legal advice using a mix of lawyers and non-lawyers.

LegalZoom already has expanded from online documents and provides prepaid legal service plans in 42 states, according to the company’s news release. The company says it plans to launch more services in North Carolina and several other states this year.

Practical Professionalism Issues:

1) Tardiness

CODE OF PROFESSIONALISM

I will be punctual in my communication with clients, other counsel and the court, and in honoring scheduled appearances

LAWYER’S DUTIES TO THE COURT

We will be punctual and prepared for all court appearances so that all hearings, conferences, and trials may commence on time; if delayed, we will notify the court and counsel, if possible. 

AVVO Website Questions:

Lawyer is late for your court date. Long Beach, CA | on Mar 15, 2008 what happens if your lawyer is late for your court date or does not

show up for your court date. Attorney answers 4

Anthony John Colleluori Federal Crime Lawyer

A lawyer's tardiness is never held against a client. If a court should lose patience with a lawyer and try to take that out on the client, then that Judge will receive harsh rebuke.

Clients rarely understand but busy lawyers in consumer legal categories such as criminal law, family law and matrimonial and even Personal injury law, often group their court appearances so

that they do not have to go to court as often for any one case. It helps keep costs to the consumer down. At the same time, these cases may co-exist in the same courthouse, but be in different Parts, so the lawyer may have to go many courtrooms during the same morning.

Courts have developed rules for these type of things. In NY we call them the rules of engagement. They help us to decide where to answer and who to answer to first. Judges are aware that busy lawyers are often the best ones in the courthouse and tend not to hold attorney tardiness against anyone as long as the lawyer didn't overly inconvenience another party or witness and so long as he makes an attempt to notify the court about when he has a conflict and how he intends to handle it.

Dave Hawkins

Child Custody Lawyer

Seattle, WA

Message

Posted on Mar 16, 2008

Being late and not showing up are two different scenarios. If I am going to be late, I always call my client on the cell and advise the court of the same. I have never not shown up for a hearing -- it's difficult for me to imagine that. If I had an attorney who did not show up, I would fire him/her and hire another attorney immediately. As to what a court might do, all courts are different and all states have different rules. Not knowing where you are located makes it difficult to answer that question.

1 Lawyer agrees

Comments 0

Gerald Gould Knapton

Ethics / Professional Responsibility Lawyer

Los Angeles, CA CA licensed

Message

Posted on Apr 7, 2008

Did something bad happen as a result of the lateness or "no show?" If you are just miffed, then a good chat with your lawyer can usually help and may solve the problem. Sometime a lawyer will call the court or agree with co-counsel to cover or stipulate to what needs to be done so that no harm is done. However if a client was expecting to see the lawyer in court and that lawyer did not show up then the client has every right to a full explanation. There is an ethical duty for a lawyer to communicate the important developments of a case to a client. Your local or state bar association can help you investigate IF you wish, but try asking the lawyer for an explanation first. It probably helps to put the request in writing and send it by fax so you have a record of it being sent. Don't be too nasty in your letter. Just set out the facts and ask for an explanation. If something really bad resulted from the no show, then you may have a claim--but ask the lawyer to fix the problem at no charge to you. Do this NOW, please.

2) Failure to Respond to Discovery

CODE OF PROFESSIONALISM

I will cooperate with counsel and the court to reduce the cost of litigation and will readily stipulate to all matters not in dispute.

I will not abuse or misuse the law, its procedures or the participants in the judicial process.

LAWYER’S DUTIES TO THE COURT

We will be considerate of the time constraints and pressures on the court and court staff inherent in their efforts to administer justice.

May a Lawyer Use a Competitor’s Name as a Google AdWord?Posted on October 31, 2016 by Dane S. Ciolino

 

The Professional Ethics Committee for the State Bar of Texas recently opined that a lawyer may use the name of a competing lawyer as a Google AdWord to generate favorable search results. See The Prof’l Ethics Cmte. for the State Bar of Tx., Op. No. 661 (July 2016).

Google’s AdWords advertising program allows Internet advertisers to purchase keywords that result in favorable and highlighted Google search results. In the opinion of the Texas committee, using another lawyer’s name as an AdWord is not “false or misleading” because:

It does not involve the overt assertion that the advertising lawyer is a partner, shareholder, or associate of the other lawyer.

A “reasonable person using an internet search engine” would not be misled into thinking that “every search result indicates that a lawyer shown in the list of search results has some type of relationship with the lawyer whose name was used in the search.”

Because of “the general use by all sorts of businesses of names of competing businesses as keywords in search-engine advertising, such use by Texas lawyers in their advertising is neither dishonest nor fraudulent nor deceitful and does not involve misrepresentation.”

Mixed Signals?

In contrast to this Texas opinion, a grievance committee of the North Carolina State Bar censured North Carolina lawyer David J. Turlington in 2013 for engaging in misleading and “dishonest” advertising. See   In re David J. Turlington, III , No. 13G0121, N.C. Grievance Cmte., Wake County (Nov. 18, 2013). His use of other lawyers’ names in a keyword advertising campaign resulted in discipline. Said the committee:

[Y]ou . . . intentionally add[ed] inappropriate keywords to your Google AdWords advertising campaign; your inappropriate keywords consisted of other individual attorney names (including attorney nicknames), names of law firms, and names of judicial officials. . . . Your intentional inclusion of other attorneys’ names and law films in your keyword advertising campaign is dishonest and therefore violates Rule 8.4(c).

In addition, the committee found that Turlington violated Rule 8.1(c) (prohibiting false statement in disciplinary matters) because he lied to the grievance committee in defending against the allegations by contending that his inclusion of inappropriate keywords was “inadvertent” and the result of a “bulk-purchase of keywords suggested by Google.” Id.

Likewise, the North Carolina State Bar Association issued an advisory opinion in 2010 that reached the same conclusion as the committee in Turlington:

It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 8.4(c). Dishonest conduct includes conduct that shows a lack of fairness or straightforwardness. See In the Matter of Shorter, 570 A.2d 760, 767-68 (DC App. 1990). The intentional purchase of the recognition associated with one lawyer’s name to direct consumers to a competing lawyer’s website is neither fair nor straightforward. Therefore, it is a violation of Rule 8.4(c) for a lawyer to select another lawyer’s name to be used in his own keyword advertising.

N.C. Bar Assoc. Op. 2010-14.

What Should Louisiana Lawyers Do?

Louisiana lawyers should avoid this and similar Google AdWords practices. Louisiana Rule 7.2 clearly prohibits a lawyer from making “a false, misleading or deceptive communication” about the lawyer, the lawyer’s services or the lawyer’s firm. Using another lawyer’s name to

generate preferential search results is, in my view, an advertising practice that is deceptive and misleading.

May a Lawyer Surreptitiously Track Emails Sent to Opposing Counsel?Posted on November 8, 2016 by Dane S. Ciolino

A “web bug” or “tracking bug” is a tag that an email sender can include in a message that will report back to the sender about the recipient’s handling of the email. See Wikipedia, Web Beacon. A “bug” included in an email message (usually in a URL for an image) will report to the sender: whether, when, and where the recipient read the message and any attachments; whether the recipient forwarded it; and the IP address of all computers used to read the message. A sender who wants to use a web bug to track an email can choose from a large number of email tracking services on the Internet, including the following: Banana Tag, HubSpot, Mailtrack, and Yesware. Such bugs are commonly used in newsletters and marketing communications to track readers’ interests in topics, products, or services.

Is it ethical for a lawyer to use such tracking bugs to surreptitiously track emails sent to opposing counsel? No, according to a recent ethics opinion from the Alaska Bar Association. See Alaska Bar Assoc. Op. 2016-1 (Oct. 26, 2016). According to the committee:

The use of a tracking device that provides information about the use of documents–aside from their receipt and having been “read” by opposing counsel–is a violation of Rule 8.4 and also potentially impermissibly infringes on the lawyer’s ability to preserve a client’s confidences as required by Rule 1.6.

More particularly, the committee opined that the use of such bugs is “conduct involving dishonesty, fraud, deceit, or misrepresentation.” Furthermore, because the bug can give the sender a glimpse into what the recipient-lawyer shared with a client, and where the client is located, it “unethically interferes with the lawyer-client relationship and the preservation of confidences and secrets.” Id.

I disagree with this opinion. Every day lawyers receive emails embedded with tracking bugs and read-receipts. There is nothing “fraudulent,” “deceitful,” or “dishonest” about sending such emails. They are commonplace.

Considering this, the burden should be on the lawyer-recipient to make sure that privileged and confidential information is not reported back to a sender. Indeed, Rule 1.6(c), requires a lawyer to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” See La. Rules of Prof’l Conduct R. 1.6. It is the rare case indeed in which a read-receipt or other tracked information is truly sensitive. In that unusual case, the recipient lawyer ought to undertake reasonable measures to protect it.  As to what those measures should be turns on the sensitivity

and importance of the information disclosed, and the cost and difficulty of employing safeguards. See ABA Model Rule 1.6, cmt. 18. So, if the location of a lawyer’s client is truly top secret—as the Alaska opinion hypothesizes—the recipient lawyer should scrub an email of any bugs prior to forwarding it the client-in-hiding by deleting embedded images or by sending it in plain-text format. Simple.

Worried about being tracked by a web bug in your inbox? You can easily avoid it by configuring your email client to stop automatically retrieving remote content via URLs embedded in email messages. To learn how to do this in Gmail, click here.