Recently, a Michigan family lawyer wrote to ask some very good questions. Her questions and my answers are below. Please note that my answers are generalized, and do not cite to specific laws. The Stored Communications Act referenced below is a federal act. No matter where you reside or practice, you'll also want to consider the laws in your state that govern Internet usage and access.
Q: On the ethical side of things, should we advise clients who already had access to their spouse's email account (either because the client set it up for the spouse or the spouse willingly provided the password to the client) to refrain from peeking at the spouse's email?
Well, I have to say "that depends." First, you don't have an ethical obligation to protect your client's spouse. Your client might feel obligated to be "ethical." But so long as the spouse doesn't change the email password, she might continue to access it. However, a logical argument might be made that "Oh they're separated and have filed for divorce. Therefore, even though she knows her spouse's password, any consent (implied or otherwise) that she might access that email account is impliedly revoked. "
Q: If the spouse doesn't change the account password, is looking at the email nonetheless unethical (or even criminal) on the part of the client?
A: The client doesn't have the same ethical constraints you might have. See above for consensual access. The Stored Communications Act governs access to email once it has been stored on a server such as Yahoo or Gmail or AOL, etc. Unless a person "exceeds authority" to access the email, then the email is fair game. While the "implied revocation of authority" argument might work, equally compelling might be an argument that the spouse knew his or her spouse had access and if he or she intended to revoke the access, he or she would have done it.
Q: What if a client brings me a stack of emails that the client printed out from the spouse's account -- will either of us get in trouble for presenting those as evidence of one point or another? If I tell a client to monitor an account that he or she already has implicit access to, am I unethical? Even more stickily, what if a client brings me emails between the spouse and the spouse's attorney?
A: The Stored Communications Act has civil and criminal penalties for violation. But, I can't even get a prosecuting attorney to charge an opposing party and opposing counsel for a similar violation with respect to electronic surveillance. I think most P.A.s have more important things to do. Interestingly, there is no exclusionary rule to would keep emails obtained from storage out of evidence if there is relevancy.
As for emails between opposing party and his lawyer -- I tell clients that I do not ever want to see them.
Let me give you the best example of why I do not discourage a client from monitoring his or her spouse's Internet when he or she has access.
Recently, I settled a custody/parenting time case one week before trial. The settlement gives Dad 9 (and I mean NINE) days of parenting time per YEAR on the west coast where the mother and child live. He also gets 4 hours on Day 1 of three 5-day weekends/year. Days 1 and 5 are travel days for Dad.
All parenting time is supervised by Mom until further order of the court. There will be no unsupervised parenting time or overnight parenting time until and unless a board certified forensic psychologist certifies in an affidavit that Dad is no longer considered a significant threat to the child.
This settlement (and the psychological evaluation that supported it) came about because my client had access to H's Yahoo password. He had given her his password for his email account and also for certain Yahoo groups that he accessed. Those Yahoo groups indicated H's compelling interest in activities that indicated that Dad might pose a threat to the child.
Explicit photographs from email and the Yahoo groups were presented as exhibits in the mediation summary. The mediation summary and H's deposition transcript were provided to the forensic psychologist. The emails and photographs would have been exhibits at trial.
I was glad that my client was Internet savvy enough to know how to do this and to appreciate the value of this evidence. The case might have turned out quite differently without the evidence.
I'd love to hear your opinions on these interrelated questions, if you care to and have time to provide them. As you have pointed out, these interesting issues are sure to arise with more and more frequency.
From time to time, I will update these Internet-related issues on my Blog. Let's face it. The Internet is here to stay and I believe we'll see more, not fewer or these issues. To keep abreast of developing areas of family law, you might sign up for email updates on this blog. You'll find the sign-up in the upper left hand corner of the blog.