Lawyer Disqualified for Suggesting Spy Software to Gather Evidence for Brother-in-Law’s Divorce Case

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Sep 18, 2012

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In a case that highlights new trends in gathering evidence for a divorce case, a lawyer has recently been disqualified from representing his sister in a civil case, after advising his sister’s husband to install internet monitoring software on the family computer to catch her cheating. Catharine Zang filed a lawsuit against her husband Joseph Zang for violating her privacy by installing “Web Watcher” and video equipment with audio to record her in their home without her knowledge, claiming violations of the federal Wiretapping Act and invasion of privacy.

The twist in the case is that Donald Roberts, the disqualified lawyer, is Catharine Zang’s brother, and Joseph Zang claims Roberts advised him to install the software in the first place after Mr. Zang confided in Roberts that he believed his wife was cheating on him. For his part, Roberts is denying Mr. Zang’s claim.  

Mr. Zang insists that Roberts not only recommended that he install the software, but that Roberts informed him that he had recommended that same internet monitoring software to other clients, and that it was legal. According to Mr. Zang, he even paid Roberts a dollar for his services, an act which is traditionally done to cement the attorney client relationship for minimal or casual legal advice.

The civil case and Mr. Roberts’ disqualification is certainly interesting given the thick plot, but there is something else about this story that is compelling – the software installation and video surveillance, the products of which one would expect Mr. Zang to have at least attempted to introduce as evidence during his divorce proceedings.

The idea of using evidence gained by surveillance in divorce proceedings is nothing new. Spying on a wayward spouse and taking photographs to use to prove adultery in order to obtain a fault based divorce has been going on for years. What this case demonstrates though, is that with new technologies come new types of evidence, such as email and text message evidence, which can be used during a divorce.

Joseph Zang was apparently trying to intercept emails sent to or from Catharine’s suspected lover. But there are other things that a spouse could capture using Web Watcher or other computer spying technologies. Software that captures every keystroke typed on a computer, or programs that secretly save and record browsing history are a couple examples of ways to electronically spy on a suspected wayward spouse.

Hidden assets and accounts, damaging statements made to family and friends in emails or instant messages, evidence of purchases made with community funds, and unsavory habits brought to light by visits to questionable websites are just a few examples of the types of information sometimes found in electronic messages. Messages containing this type of material could be recorded and presented as evidence during a divorce or custody case.

Even without the overt spying, evidence in the form of electronic communications is more and more frequently presented during divorce and other family court cases, often with drastic consequences. Emails and text messages are particularly problematic because of the instantaneous nature of electronic communication. In the blink of an eye, an angry message can be sent, without thinking through the possible consequences.

Many times, the messages aren’t obtained by prying, but actually sent directly to a recipient spouse who then uses them in family court. For example, nasty names may support a spouse’s claims of verbal abuse, while threats give the court a reason to believe claims of domestic violence and assault that might be completely false.

Understanding the possibilities and what can and cannot be used in a divorce case is a good idea, although when divorce is suddenly on the radar, how many people have thought ahead and used care when texting their husband or wife? Clearly the best way to avoid being steamrolled by your own behavior during a divorce or a custody case is to be a decent spouse; respect your husband or wife, and be truthful and transparent. Unfortunately, though, whether related to our cultural values in the United States or just human nature, that just isn’t realistic in many cases.

Courts are still sorting out new forms of communications and the many new ways of gaining access to them, like the sneaky software Joseph Zang installed on his home computer to trap his wife. Some of these methods of getting access to evidence, and maybe some types of evidence, will be found too unscrupulous or unreliable to be allowable by courts. The fact is, though, it is fairly easy to make up a story about where a damaging piece of evidence came from, and, once something incriminating has been introduced it can be tough to undo the damage even if it is eventually excluded by a court.

Divorcing couples beware – even where it seems categorically unfair to admit a piece of evidence, family courts often allow email, text, and other electronic material, especially in short hearings such as hearings for temporary divorce or child custody orders. This is true even when the messages might be hearsay or violate some other rule of evidence.

Courts allow this type of evidence because they recognize that although parties in family court often engage in rampant exaggeration, when a situation is really bad it can be difficult or impossible for a tormented spouse to prove abuse and other circumstances without some leeway in presenting evidence. Because it is so challenging at times to determine which spouse is being truthful, and the stakes are so high, family court judges often allow evidence that would never be tolerated in other courts.

Clients are often stunned at the sort of evidence a family court judge will allow. The fact is, you shouldn’t be surprised if a copy of an email sent to the person you trust most in the world turns up stapled to your soon to be ex-spouse’s papers and filed with the court. To find out more about how electronic evidence can be used in a divorce case, read this article on email, text message, and other electronic evidence in divorce cases.

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