Illegally obtained Electronic Evidence and Family Law

This is an excerpt from Attorney Greg Enos' post to family law attorneys that practice in the Gulf Coast Region of Texas. His publication is known as the Mongoose and is published on the internet.  

He knows a lot more about this topic than I do!

Thanks Greg...

(Here is the bottom line - Attorneys are now being advised not to represent a person with illegal obtained electronic evidence. Attorneys are also advised not to tell the person - or even hint - to destroy of this evidence.)

PLEASE -- if you have a question about this - don't call me! Call the law firm shown below in large type. 

Illegal Electronic Evidence and Family Law  

Lawyers can be sued, arrested and sent to prison and disbarred for mishandling illegal electronic evidence, such as recordings, e-mails and text messages.   

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).

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 of 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.

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.

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: Represent a person who has illegally obtained electronic material. Period. It is not worth the risk.   

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.

 

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.