Electronic Evidence – Attorney Beware!
Illegal Electronic Evidence and Family Law Part 1: Attorney Beware!
December 9, 2014
Written by Greg Enos, Issue: No. 56
The Enos Law Firm
17207 Feather Craft Lane, Webster, Texas 77598
“Lawyers can be sued, arrested and sent to prison and disbarred for mishandling illegal electronic evidence, such as recordings, e-mails and text messages. This article is the first in a series on what makes electronic evidence illegal, the many ways that electronic evidence is being obtained illegally these days, how law firms and clients can safeguard their computers and phones and what can happen to clients and lawyers who break the law. This first article focuses on what attorneys should never do with illegally obtained evidence.
An attorney can face personal, criminal and civil liability for using or disclosing an illegal recording or illegally intercepted electronic communication (e-mail or text message) provided to the attorney by a client. For example, the following can be separate and independent federal and state wiretap act violations: (1) a client’s disclosure to an attorney of an illegally obtained e-mail, (2) the attorney’s disclosure to his staff, co-counsel or expert of the e-mail or its contents, (3) an attorney’s use of information obtained from the illegal evidence in pleadings, (4) an attorney’s use of the illegal evidence as attachments to pleadings and affidavits, (5) a lawyer’s use of information obtained from the illegal evidence when questioning a witness, (6) a lawyer’s use of the illegally obtained recording or communication as evidence in court or a deposition.
Each separate illegal use or disclosure of intercepted communication can be a federal or state felony and can result in a $10,000 civil penalty (plus actual damages and attorney’s fees).
Consider this example from criminal defense attorney Mark Bennett’s excellent blog (click here to read his entire post):
Just before Duke’s first unsupervised visit, Dianna bought a small digital recorder online. Dianna unstitched a bit of her daughter’s favorite teddy bear-known as “Little Bear”-and stuck the recorder inside, stitching the animal back up afterwards. The recorder never left the bear’s guts after this, except when the animal was washed. With no voice activation feature, the gadget simply recorded everything that happened in its presence, and Dianna periodically unstitched the bear just enough to insert a USB cable and download the audio recordings to her computer.
. . . . .
All of this material was then turned over to Dianna’s lawyers, who submitted it to the state court and waited for a ruling on its legality. In the summer of 2008, the state judge decided that the recordings were not admissible as evidence in the custody trial, since they violated the Nebraska Telecommunications Consumer Privacy Protection Act and were therefore obtained illegally.
Then, in a federal civil lawsuit by the people whose oral communications had been illegally recorded, the clients got dinged for $60,000 each plus attorney’s fees for violating the Federal Wiretap Act, 18 USC Section 2511.
The court found that their lawyer had violated the Act by revealing the recordings to other lawyers in the case, but did not enter a judgment against him:
The court has carefully considered Mr. Bianco’s role in this matter and finds that damages should not be awarded against Mr. Bianco. Bianco did not solicit or advise the Divingnzzos to intercept the plaintiffs’ oral communications. While he disclosed the illegally-obtained materials to advance his client’s position in the Custody Case, the court did not consider the materials. The other recipients returned the materials unread or maintained the confidentiality of the communications.
The lawyer, who could easily have been ordered to pay $60,000 as well, got lucky in part because “the other recipients…maintained the confidentiality of the communications”-something entirely out of his control (and not, strictly speaking, a legal defense).
Moreover, both the lawyer and his clients got majorly lucky in another way: by not getting indicted. If the Divingnzzos or Bianco had popped up on the radar of the U.S. Attorney for the District of Nebraska, they could easily have been facing zero-to-five-year felony wiretap charges.
The Federal Wiretap Act (which applies to interception of phone, voice and electronic communications) can make a lawyer a criminal if she:
(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
18 U.S.C. § 2511(1)(c), (d).
The Texas Wiretap Act is basically the same as the federal law except a lawyer can commit a crime if she is reckless in using an illegal recording or communication (which is a much broader standard of liability than “knows or has reason to know the information was obtained through [an illegal] interception…”). Under the Texas law, a person commits a crime if she…
(2) intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if the person knows or has reason to know the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(3) intentionally uses or endeavors to use the contents of a wire, oral, or electronic communication if the person knows or is reckless about whether the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
Tex. Penal Code § 16.02(b).
The Austin law firm Noelke English Maples St. Leger Blair, LLP has provided excellent guidance for attorneys that we all should follow:
DO: Advise your clients that they cannot delete, destroy, remove, or otherwise edit electronic data.
DON’T: Take possession of illegally obtained material. If you have it in your possession, read it or listen to it, you may be committing a crime by using it in the preparation of your case.
DO: Advise your clients on the law of intercepting email and other forms of communication. The best policy is to advise your clients NOT to access their spouse’s email accounts at all, even if they think they have consent to do so.
DON’T: Represent a person who has illegally obtained electronic material. Period. It is not worth the risk.
DO: Advise your clients to change all of their passwords. And if you suspect that spyware has been installed, have the computer or phone inspected by an expert.
DON’T: If you have illegally obtained discovery in your possession, don’t produce it in discovery without the advice of a criminal defense attorney.
DON’T: Turn over your client’s cell phone or computer for copying without a written agreement in place as to how it will be searched. There may be privileged or non-discoverable data on these devices that does not need to be produced.
The next article in this series will describe the most common methods of illegally intercepting or obtaining electronic evidence and what laws are being violated. For example, is it a crime for a husband to guess his wife’s g-mail password and printout her e-mails with her boyfriend? Can the lawyer go to jail if she uses or shares those emails? This is stuff we all need to know and we need to educate our staffs and our clients about these laws, so we all can stay out of trouble.”
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