By Michael H. Gora
Q: My husband, the geek, is a self-educated computer wizard. It appears that he was planning our divorce for several months before he took his room full of computer equipment and moved out. Every time he got a new computer, however, he left me with the last model. I’m no expert but I can do the rudimentary things such as create a document, go on the internet, and send and receive e-mail.
When the geek left, he gave me a present that I did not know about, a spyware program in my computer that automatically sent him a copy of any e-mail that I either sent or received. Before he left, but after we stopped sleeping together, I met a man at my bridge club, and gone out to dinner with him a few times. We e-mailed each other on occasion over bridge questions. After my husband left, it became more serious.
After my husband filed for divorce, I hired a divorce lawyer. My lawyer and I often exchanged e-mails about the lawsuit. I also exchanged e-mails with his paralegal.
Shortly after the lawsuit was filed my lawyer got a letter from the other attorney with several copies of e-mails between my friend and I, dated before and after my separation.
We took my husband’s deposition. He admitted having obtained my private e-mails by “bugging” my computer. Thereafter my lawyer filed court request to ban the use of the e-mails against me, and asked the court to throw the other attorney off the case, because that attorney could have also been given my private lawyer client e-mails.
The hearing on these matters is coming up in a couple of weeks. What do you think will happen?
A: In 2003 the Florida Legislature passed a statute, 943.03(1) making certain communications inadmissible. The statute prohibited the interception of wired or wireless communications, in which a person had an expectation of privacy.
Florida case law, interpreting the statute, has determined that a person has an expectation of privacy in the sending or receiving of e-mails under certain narrow circumstances. The judge, at your hearing, may make a distinction between communications intercepted while your husband and you lived in the same home, and interceptions made surreptitiously after he left your home.
If your husband had organized your e-mail system, and knew your password, you could hardly claim an expectation of privacy. On the other hand, the judge may feel that interceptions made after you broke up, and he moved out were subject to being kept out of evidence under the statute.
The communications between you and your counsel are not only governed by the statute, but also by the ethics rules of The Florida Bar. If your husband’s lawyer had been given copies of your communications with your lawyer the Bar Rules, require that he not read such communications, and immediately return them to your lawyer. He would also have to direct your husband to stop intercepting the transmissions.
If there is proof that your husband’s attorney knowingly received such communications, read the communications, and encouraged the continued interception of such communications, he could be removed from the case, and disciplined by The Florida Bar.
Michael H. Gora has been certified by the Board of Specialization of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton. Gora can be reached at (561) 289-5647.