Dallas Divorce Law Blog by Michelle O'Neil

Law Firm Sued Over Divorce Client’s Use of Spyware

A law firm in Chattanooga, Tenn., has been sued for $2 million by a man who says one of its lawyers tried to use improperly intercepted e-mail in a divorce case.

Farrell Hayes says in the suit that the law firm Berke, Berke and Berke represented his wife, Alice Suzanne Hayes, in a divorce action, the Chattanoogan.com reports. The suit claims Alice Hayes installed “eBlaster” software on Farrell Hayes’ laptop computer that intercepted his communications.

The suit says lawyer Marvin Berke used or tried to use some of the e-mail in the divorce case. Berke told the Chattanoogan that the suit will be “vigorously defended.”

From the ABA Law Journal Law News Now

Also Law.com Legal Blog Watch

Note:  For the most part, it is illegal to use spyware on a computer that belongs to another person, even if the other person is a spouse.  A lawyer that uses information obtained illegally through spyware or similar methods can be held both civilly and criminally liable.  Even if a lawyer produces documents in discovery that were obtained this way, that would be “use” and the lawyer could be liable.  LAWYERS BEWARE!

A lot of times clients come into our Dallas divorce law office looking for “revenge” during their divorce proceeding.  While this is understandable given the amount of emotion involved in any divorce, having your lawyer take an overly aggressive approach with the other side can end up costing you dearly.

In our experience, opposing counsel generally falls into one of three categories.  The first type is the attorney who is passive and avoids confrontation at all costs.  Obviously, this isn’t the type of attorney you want handling your case.  Second is the attorney who is the complete opposite of the first type.  Attorneys falling into this category argue for the sake of arguing and take the “tough”  approach that some equate with successful advocacy.  Attorneys falling into this category often are overly aggressive to the point it costs the client (both in attorneys’ fees and in property division).  The final category is composed of attorneys that know when to be aggressive and when to be less than aggressive.  Lawyers in this category truly see the forest through the trees and obtain the most favorable outcomes for their clients.

A prime example of the effects of an attorney being overly aggressive recently occurred in an elderly abuse case in California.  In that case, the trial court expressly noted that the attorney’s conduct in examining a witness was the final straw in ruling in favor of the opposing party.

Bottom line, the attorney’s overly-aggressive approach ended up costing his client the case, and in all likelihood increased the amount of costs and fees for both parties.  At our Dallas divorce law firm, we take pride in knowing when being aggressive is appropriate and when to take a more relaxed approach.

Michelle May O’Neil, Dallas divorce lawyer, was quoted in the Dallas Morning News article More Texans Paying Child Support with Unemployment Checks As Economy Suffers.  The article by Emily Ramshaw was the lead article in the Thursday July 2, 2009 edition, starting on the front page, and with Ms. O’Neil’s picture appearing on page 14a.