In Zang v. Zang, 2012 U.S. Dist. LEXIS 123383 (S.D. Ohio, August 30, 2012), the defendant's motion to disqualify plaintiff's counsel was granted due to Donald Roberts, the lawyer of the plaintiff (and former lawyer/brother-in-law of the defendant), allegedly being involved in encouraging the defendant to install spyware to aid in custody and divorce proceedings. The plaintiff (wife) in this matter is "asserting claims under the federal Wiretap Act, 18 U.S.C. § 2510 et seq., together with state law claims for invasion of privacy, conspiracy to commit invasion of privacy, and violations of the Ohio wiretap statute."
The facts as summarized by the court:
According to Mr. Zang, he confided in Roberts [the lawyer] that he suspected Ms. Zang of infidelity. Mr. Zang alleges that Roberts advised him to install a program called "Web Watcher" on the computer in the marital home, that Roberts assured him that he recommended this program to his other domestic relations clients, and that Roberts even suggested stores where Mr. Zang could find the software. After this conversation, Mr. Zang claims that he paid Roberts one dollar "as a retainer for his legal services." Mr. Zang then purchased and installed the Web Watcher program.Quite a strange set of facts, seeing as the attorney who was disqualified was the brother-in-law of the defendant, yet is now retained by Ms. Zang (plaintiff). Not surprisingly, Roberts (the attorney) denies ever being paid a $1 retainer by the defendant and offering such advice. Mr. Zang argues otherwise. (Side note: If the facts are true, Roberts will likely enjoy some time in front of the Ohio State Bar.)
To determine whether to disqualify Roberts, the court analyzed the rules of professional conduct in Ohio and held that because he would likely be called as a witness in the case and that his testimony was certainly material, and likely necessary, he could not be retained.
The court concluded:
Regardless whether reliance on the advice of counsel is a complete defense to a civil action brought under the wiretap statutes, this issue is relevant to any consideration of damages in this case. Both the federal and Ohio wiretap statutes provide for punitive damages in "appropriate" cases. 18 U.S.C. § 2520(b) and Ohio Rev. Code § 2933.65(A). Specifically, section§ [sic] 2520(b)(2) of the federal Wiretap Act "expressly permits the award of punitive damages when the aggrieved party demonstrates that a wanton, reckless or malicious violation of the Act has occurred." Smoot v. United Transp. Union, 246 F.3d 633, 647 (6th Cir. 2001) (internal quotes omitted). Thus, any evidence tending to show that Mr. Zang believed he was acting lawfully may be pertinent to the determination of whether he acted with the sufficient state of mind to make the award of punitive damages appropriate. Besides Mr. Zang, Roberts may be the only other witness who has personal knowledge on this point.Stay tuned...