Lawyer Who Advised Brother-in-Law Regarding the Use of Spyware on His Wife Disqualified in Ensuing Privacy Dispute — Zang v. Zang
[Post by Venkat Balasubramani]
Zang v. Zang, 11-cv-00884 (S.D. Ohio; Aug. 30, 2012)
This is another case involving surreptitious monitoring in the context of a divorce. I’ve half-jokingly mentioned that people who deploy monitoring or tracking software should seek the advice of counsel before doing so. Joseph Zang, who suspected his wife Catharine of infidelity, claims he did this. Unfortunately, for Mr. Zang (or for the lawyer he sought advice from), things did not work out as planned. In fact, things went about as far South as they could have possibly gone.
The court is resolving a motion to disqualify plaintiff’s counsel (Donald Roberts) brought by Joseph, and a host of others, who were all sued by Catharine for invasion of privacy and violations of the federal Wiretap Act. Apparently Joseph decided to install “monitoring software on the computer and a video camera with audio in the home” he shared with Catharine. He claims he sought counsel from Roberts, who happened to be his brother-in-law at the time. He also says he paid Roberts $1 for his legal services, and Roberts allegedly advised him that installing this stuff to monitor Catharine’s possible infidelity was kosher. Roberts allegedly said that he recommended the “Web Watcher” software to many of his domestic relations clients, and suggested a place where Joseph could purchase the software.
This all sounds potentially problematic to begin with, but here’s the bombshell: Roberts is now Catharine’s lawyer.
The court says that disqualification is required because, at a minimum, Roberts’s advice will go to Joseph’s state of mind and will affect the damages calculation. There’s also the issue that Roberts is a third-party defendant in a malpractice claim brought by Joseph.
There’s an underlying he said/she said dispute over whether Roberts represented Joseph. Joseph claimed he was being given legal advice and he even paid the sum of $1 for this advice. Parties often exchange the symbolic amount of $1 with lawyers that they receive informal advice from (in order to cement the relationship and preserve the attorney/client privilege). Roberts for his part denies these allegations. I suppose the fact-finder will sort out whose version is more accurate.
There are many many other lessons to be learned from this dispute. The easy one (for lawyers) is to tread carefully when offering legal advice to your brother-in-law about possible marital issues with your sibling. If you break that rule, you should probably refrain from representing the other half of the marriage with respect to a claim that directly implicates your legal advice. If you’re going to offer up the advice, you should probably stay out of the ensuing legal dispute. (Again, it’s unclear whether Roberts actually represented Joseph, but if he did, this could get ugly for him.)
Then there’s also the lesson to be learned from Joseph’s side. It’s wise to tread carefully when seeking legal advice from your brother-in-law, particularly when it relates to your marriage. If you do, you may want to make sure the brother-in-law will not flip and decide to represent your ex-spouse. Finally, and most importantly, if you do seek this type of advice, do not, under any circumstances, pay one dollar for it. I guess in the end, this goes to show that you get what you pay for in terms of legal advice.
As a final note, I’m not sure installing spyware or surveillance equipment to surreptitiously monitor someone else’s communications is ever a good idea. I can see parents getting away with doing it to monitor their kids’ online activities, but in any other context, if you don’t have a document to point to (e.g., an employee manual) that provides at least implicit consent for this type of monitoring, you’re going to have a long, uphill road to climb on the legal side.