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March 2017 - Pest Control

by Richard W. Millar, Jr.

I read recently that Columbus, Ohio made a top ten list. It was not an achievement the local Chamber of Commerce is likely to applaud or publicize. According to the Marysville News (and don’t ask me how I happened on that paper), “Bedbugs [are] still a nuisance for central Ohioans.”

Specifically, Orkin ranked Columbus at number five in its list of top fifty cities with the worst bedbug problems. I don’t know how Orkin arrived at its itchy conclusion, nor can I imagine why bedbugs would find central Ohio appealing. A lot of people don’t, and their reasons do not usually, if ever, include bedbugs. But, if you are a pest control company, it is a target location for a branch office, behind only Baltimore, Washington, D.C., Chicago, and New York. I am surprised that Washington, D.C. did not top the list, because if you count politicians, it has more pests than any place else.

Alaska has a bug problem also. So much so that the Alaska Bar Association Ethics Committee has been called upon to weigh in on it. (My first thought was that bugs and lawyers don’t go together, but my second thought was maybe they do.)

Unlike central Ohio, the bugs that concern the ethics people in Alaska are web bugs, not bed bugs. This was news to me: bed bugs I’d heard of, web bugs not so much.

Apparently, a web bug is akin to attaching a GPS to an email. To quote from the opinion, “a web bug is a technology tool that tracks certain information about the document to which it is attached.” A “commercial provider of this web bug service advertises that users may track emails ‘invisibly’” (i.e., without the recipient’s knowledge), “and discover such tidbits as where the email was opened.” (I don’t know about you, but I wouldn’t want anyone to know that I opened their email in the men’s room, but I digress.)

These invisible critters can also tell how long the e-mail was viewed and if the recipient was also engaged in other activities. (See above.)

It will divulge whether the viewer opened an attachment, whether it and the attachment were forwarded, and even which pages of the document received the most focus.

The Alaskan Ethicists posited two hypotheticals: (1) the client has moved and doesn’t want his/her location disclosed (it was “her” in the opinion but I insist on gender equality); and (2) a draft settlement is sent to a lawyer who then sends it on to his/her client permitting the sender to discover what pages the lawyer and the client found to be the most important.

The opinion opined (which is what opinions do) that, even if the bug had been disclosed, it still would be impermissible because it interferes with the lawyer-client relationship and the preservation of confidences and secrets.

The opinion also stated that, while lawyers are supposed to take reasonable precautions in transmitting confidential communications, that does not require the lawyer “to presume” opposing counsel will “bug” emails, a task that technological advances and software may make impractical or impossible. Thus, the only way to remedy the problem is to put the onus on the sending attorney.

Well, now that I know about these bugs, I am protected, and no lawyer is going to take advantage of me.

But, I would appreciate it if someone would let me know how to wipe Raid off my screen.

Richard W. Millar, Jr. is a member of the firm of Friedman Stroffe & Gerard, P.C. in Newport Beach. He can be reached at rmillar@fsglawyers.com.

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