Lawsuit claims law firm used information from illegal spying

Divorce clients with suspicious information could pose trouble for lawyers

By Peter Vieth
BridgeTower Media Newswires

RICHMOND, VA - Divorce lawyers accused of using dirt uncovered by illegal recordings and computer snooping have no blanket protection against a lawsuit based on state and federal wiretap laws, a federal judge has ruled.

Allegations in the case mirror recent warnings that divorce clients who come bearing suspicious information about adverse spouses could pose trouble for their lawyers.

U.S. District Judge Liam O'Grady denied a motion to dismiss the wiretap case against the Fairfax firm of Curran Moher Weis and lawyers Gerald R. Curran and Demian J. McGarry. The eavesdropping lawsuit also names the divorcing wife and family members who supported her. O'Grady's Jan. 25 decision is Marsh v. Curran (VLW 019-3-030).

The wife was granted a divorce on grounds of adultery on Nov. 26 in the underlying divorce case in Loudoun County Circuit Court, but the husband's federal wiretap case continues.

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Judicial finding of wiretap violation

Husband Tim Marsh had to acknowledge infidelity to support his wiretap claims. He alleges in an amended complaint that wife Andrea Marsh and her family supporters bugged his phone, his car and his home office, gathering information about his encounters with romantic partners and his communications with his lawyers.

Marsh says in his pleadings that he discovered audio recordings of his communications on his computer and found a journal of intercepted communications. He claims the intercepts included texts with his divorce attorney, Brian West of Vienna.

Marsh said his wife and her supporters shared the illegally intercepted communications with Andrea Marsh's first attorney in the divorce case and later with the wife's new attorneys at the Curran firm.

Attorney John E. McIntosh Jr. of Alexandria, representing the Curran lawyer defendants, said those lawyers are blameless.

"My clients never intercepted anyone's private conversations nor did they ever advise anyone else to do so. Nor did my clients knowingly use or disclose any illegally obtained evidence," McIntosh said Feb. 5.

But there was such illicit evidence, a judge said. Loudoun County Circuit Judge Thomas D. Horne ruled on March 30 that two recordings of Tim Marsh's conversations with a romantic partner "clearly violated the statute," according to the amended complaint. Horne's finding came after Andrea Marsh repeatedly invoked the 5th Amendment when asked about interception of her husband's communications.

In the federal lawsuit, Marsh contends the Curran lawyers used the illicit information to fashion deposition questions and interrogatories. The lawyers also provided explicit details in discovery responses that could only have come from illegal snooping, Marsh said.

"With full knowledge of the illegality of their actions and their legal jeopardy, the Defendant Lawyers chose to break the law and use the illegally obtained information in the divorce litigation. And they continued to do so even after Judge Horne's ruling that the recordings were obtained in violation of the wiretap statute," wrote Tim Marsh's attorney, Jon D. Pels of Bethesda, Maryland.

The Curran lawyers disputed the allegation that the information they used could only have come through illegal surveillance.

"[T]he evidence could have been obtained in numerous other ways, and it is totally belied by the fact that Plaintiff was found guilty of adultery on legally obtained evidence, evidence that had nothing to do with wiretapping," McIntosh wrote.

The defendant lawyers argued Tim Marsh's alleged injuries and damages "clearly arise out of his own illegal and immoral conduct, the serial adultery he so graphically describes in his Complaint."

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No privilege for use of illegal spy data

Ruling on motions to dismiss, O'Grady rejected the defendant lawyers' contention that their use of the illegal recordings was privileged and entitled to absolute immunity. A 2009 4th Circuit decision signaled that court would not recognize a litigation privilege exception to the prohibitions of the state and federal wiretaps statutes, the judge said.

"Permitting attorneys to use or disclose unlawfully intercepted information to advance their client's position in court would thus undermine the purpose of the statutes even when the attorneys did not participate in the unlawful interception," O'Grady wrote.

The crime-fraud exception barred use of the attorney-client privilege, the judge said.

"Zealous defense of a client does not permit law-breaking," O'Grady said, quoting the 6th Circuit.

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Notice shown

O'Grady also ruled that Marsh alleged sufficient facts to show the defendant lawyers were at least on inquiry notice that the information their client provided came from an unauthorized wiretap.

"Defendant Lawyers should have at least suspected that none of the parties involved consented to their conversations being intercepted," the judge wrote.

O'Grady said citations to the Virginia Rules of Professional Conduct were not misplaced because the lawyers' ethical and professional obligations were relevant to whether they should have known the information came from an illicit wiretap.

The judge also found that Marsh had sufficiently stated a claim for intentional infliction of emotional distress.

"Surreptitiously recording an individual's confidential communications with his attorney and private communications with his romantic partner in his home and car is intolerable conduct," O'Grady said. A jury also could find that lawyers' alleged use and disclosure of those communications was "outrageous or intolerable," the judge continued.

O'Grady said the defendants' "unclean hands" argument would have to wait, since motions to dismiss do not resolve applicability of defenses.

Pels Tim Marsh's attorney declined comment as the case is continuing. No trial date has been set.

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Warnings for family lawyers

Use of cellphone spyware and similar tactics by divorce clients was the topic of a panel discussion at a 2015 Virginia Bar Association gathering. Family law attorneys reported more clients were showing up with information that could only come from illegal snooping, according to previous reporting in VLW.

Bar leaders said lawyers have an obligation to tell clients to halt any such illicit spying. Moreover, the presenters said lawyers are obliged to avoid any use of information they have reason to know was the product of illegal interceptions.

At the time, there were no reported case decisions on the topic nor any reports of misconduct to the Virginia State Bar.

Published: Mon, Feb 18, 2019

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