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Law Firm Sued for Using Ill-Gotten Evidence From Spyware

Let's say that you're a divorce attorney and your client brings you damning e-mails that will help her case. Before you decide to use those e-mails at trial, you'd better make sure that they weren't procured through the use of illegal spyware. Otherwise, as Sharon Nelson of Ride the Lightning cautions, you might find yourself the subject of a $2 million lawsuit like the lawyers at Chattanooga, Tenn., firm Berke, Berke & Berke (a firm name that has nothing to do with this guy).

According to, Farrell Hayes is suing the Berke firm (and the individual name partners) for $2 million in a Tennessee circuit court for alleged use of e-mail spyware. Hayes claims that his soon-to-be ex-wife installed eBlaster software on his computer in order to intercept his communications. The software directed Mr. Hayes' e-mail to his former sister-in-law, and she passed them on to his wife. Hayes claims that the interception of the e-mails violated federal and state laws.

The Chattanoogan story says that Berke is being sued for attempts to use this ill-gotten evidence. This kind of theory implies that the Berke had a duty to inquire how his client had procured her husband's e-mails, and I'm not sure that's the case. Of course, if Berke instructed clients to install spyware to unlawfully obtain evidence, that's as bad as if the attorneys installed the spyware themselves. If that's the case, then the $2 million is the least of the Berke firm's problems; as Nelson points out, the firm's lawyers will face serious ethics charges as well.

Posted by Carolyn Elefant on July 2, 2009 at 10:32 AM | Permalink | Comments (4)


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