Vol. 27, 2015 Wiretap Statutes and Attorney Liability 263 Hidden Landmines for the Family Law Practitioner: Attorney Liability under State and Federal Wiretap Statutes by Allison B. Adams* I. Introduction Family law practitioners commonly encounter cases that im- plicate the state and federal wiretap statutes. A client may give his attorney an audio or video recording of a spouse and seek to use the recording as evidence in a custody or divorce case. Cli- ents often ask their attorneys for advice on how to gather evi- dence to support a claim, for example, that a spouse is hiding marital assets or to further a claim for sole custody or removal. Frequently these issues arise in the context of highly contentious custody cases or cases involving a cheating spouse. These highly emotional issues may lead clients to seek out evidence, including illegal wiretap evidence, at all costs. Attorneys can easily find themselves trapped between advocating on behalf of a client, who may be very insistent upon gathering and using such evi- dence, and potentially finding themselves liable under the state and federal wiretap statutes. While some courts disagree,1 the majority view is that the Wiretap Act applies in the family context.2 There is no inter- spousal exception to liability in the text of the Act, and legislative history shows congressional knowledge and intent that the Act * Allison B. Adams practices family law with Schiller DuCanto & Fleck LLP in Chicago, Illinois. 1 See Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir. 1977); Simp- son v. Simpson, 490 F.2d 803, 805 (5th Cir. 1974), overruled by Glazner v. Glazner, 347 F.3d 1212 (11th Cir. 2003). 2 Glazner v. Glazner, 347 F.3d 1212, 1215-16 (11th Cir. 2003); Thompson v. Dulaney, 970 F.2d 744, 748 (10th Cir. 1992); Kempf v. Kempf, 868 F.2d 970, 973 (8th Cir. 1989); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir. 1984); United States v. Jones, 542 F.2d 661, 668 (6th Cir. 1976).264 Journal of the American Academy of Matrimonial Lawyers applies to family matters.3 One study even found that 79 percent of reported wiretaps were executed in the family context.4 Fur- thermore, as discussed in this article, the volume of cases dealing with liability for illegal wiretapping in family law cases show the prevalence of wiretaps in such cases. Because new technology makes it easier to capture audio and video recordings on popular devices, including smartphones and tablets, family law practitioners are likely to be faced with an ever-increasing number of complicated legal issues in this realm. Unfortunately, the state and federal wiretap statutes present a minefield of liability, even for the most knowledgeable family law practitioner. The wiretap statutes are very broad-sweeping. As a result, many everyday actions technically implicate criminal or civil lia- bility for attorneys or their clients, including commonplace activi- ties such as using a baby monitor or videotaping family events.5 This issue was recently highlighted by the Illinois Supreme Court in its decisions declaring the Illinois eavesdropping statute un- constitutional.6 This decision by the Illinois Supreme Court was based, in part, on the large number of everyday actions that may subject people to liability under the statute.7 The Illinois eaves- dropping statute has been revised and recently signed into law.8 Furthermore, federal and state wiretap statutes, including the new Illinois statute, may allow for civil and criminal liability 3 See Thompson, 970 F.2d at 747-48. 4 Richard C. Turkington, Protection for Invasions of Conversational and Communication Privacy by Electronic Surveillance in Family, Marriage, and Domestic Disputes Under Federal and State Wiretap and Store Communications Acts and the Common Law Privacy Intrusion Tort, 82 NEB. L. REV. 693, 695-96 (2004) (citing NAT’L COMM’NFORTHE REVIEWOF FED. & STATE LAWS RELAT- ING TO WIRETAPPING & ELEC. SURVEILLANCE, ELEC. 160 (1976)). 5 See Elizabeth Pride, Down the Rabbit’s Hole: Baby Monitors, Family Movies and Wiretap Law, 23 J. AM. ACAD. MATRIM. LAW. 131 (2010). 6 People v. Melongo, 6 N.E.3d 120, 127 (Ill. 2014); People v. Clark, 6 N.E.3d 154, 162 (Ill. 2014). 7 See Clark, 6 N.E.3d at 161-62. 8 See 2014 Ill. Legis. Serv. P.A. 98-1142 (S.B. 1342) (West) (revising the Illinois Eavesdropping Statute, in part, to add that the recorded conversation must be “private” and the recording done in a “surreptitious manner” for the actions to be unlawful); Monique Garcia, Quinn Signs New Illinois Eavesdrop- ping Rules into Law, CHI. TRIB., Dec. 30, 2014, available at http://mychicagotri bune.com/#section/-1/article/p2p-82425304/.Vol. 27, 2015 Wiretap Statutes and Attorney Liability 265 in connection with any number of factual scenarios, many of which remain untested. New issues continue to arise with ongo- ing technological advancements. Whether a person’s actions vio- late the wiretap statutes is generally a highly fact-based inquiry, dealing with issues including intent, knowledge, motive, and pri- vacy expectations. Consequently, the wiretap statutes are laced with the potential for attorney liability. This article discusses attorney liability in connection with the wiretap statutes as an aid to the family law practitioner. Part II provides a brief overview of the state and federal wiretap stat- utes. Part III analyzes common issues implicating attorney liabil- ity and professional conduct violations in connection with the state and federal wiretap statutes. Part IV offers guidance to help family law practitioners navigate the wiretap statutes and avoid the hidden landmines. II. Overview of the Wiretap Statutes A basic understanding of the state and federal wiretap stat- utes will aid in understanding the liability traps for family law practitioners.9 The federal wiretap statute (“Wiretap Act”) was originally enacted as Title III of the Omnibus Crime Control and Safe Street Acts of 1968. The U.S. Supreme Court had just de- cided Katz v. United States,10 in which the Court determined that the Fourth Amendment protected individuals’ reasonable pri- vacy expectations where new technology endangered that privacy interest.11 The Wiretap Act strengthened the privacy protections of its preceding law, the Federal Communications Act from 1934 (“FCA”), given new technological advancements.12 The Wiretap Act was amended again in 1986 to keep pace with new technol- ogy.13 The current Wiretap Act is found in Title I of the Elec- tronic Communications Privacy Act (“ECPA”) of 1986.14 9 For a more expansive review of the history of the Wiretap Act, see Turkington, supra note 4, at 700-05. 10 Katz v. United States, 389 U.S. 347 (1967). 11 Id. at 353. 12 See Gelbard v. United States, 408 U.S. 41, 48 (1972) (citing the Senate committee report that accompanied Title III); Turkington, supra note 4, at 701- 02. 13 See Turkington, supra note 4, at 703. 14 18 U.S.C. §§2510 - 2522 (2014).266 Journal of the American Academy of Matrimonial Lawyers In addition, all states, with the exception of Vermont, have wiretap statutes.15 The state statutes are at least as restrictive as the federal Wiretap Act.16 Some state statutes contain greater restrictions than the federal Wiretap Act, including twelve states that require two-party consent, meaning consent of all parties to the conversation, to avoid liability.17 The federal statute and the remaining state statutes only require consent of one party to the conversation. This article focuses on the federal statute, but due to the restrictive nature of certain state statutes, additional liabil- ity may attach under these state statutes. A. Actions that Violate the Wiretap Act The Wiretap Act protects the privacy of wire and oral com- munications.18 In pertinent part, it imposes civil and criminal penalties for anyone who “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.”19 “Oral communication” as used in the Wiretap Act “means any oral communication uttered by a person exhibiting an expecta- tion that such communication is not subject to interception under circumstances justifying such expectation.”20 The Wiretap Act 15 See GINA STEVENS & CHARLES DOYLE, CONG. RESEARCH SERV., 98- 326, PRIVACY: AN OVERVIEW OF FEDERAL STATUTES GOVERNING WIRETAP- PING AND ELECTRONIC EAVESDROPPING 151 (2012). 16 See United States v. Mora, 821 F.2d 860, 863 n.3 (1st Cir. 1987) (noting that “[g]enerally speaking, insofar as wiretapping is concerned, states are free to superimpose more rigorous requirements upon those mandated by the Con- gress,but not to water down federally-devised safeguards.”) (internal citations omitted). 17 California: CAL. PENAL CODE §632 (2014); Connecticut: CONN. GEN. STAT. §53a-189 (2015); Florida: FLA. STAT. ANN. §934.03 (2015); Illinois: 720 ILL. COMP. STAT. §5/14-2 (2014) (amended by 2014 Ill. Legis. Serv. P.A. 98- 1142 (S.B. 1342) (West); Maryland: MD. CODE ANN., CTS. & JUD. PROC. §10- 402 (2015); Massachusetts: MASS. GEN. LAWSch. 272, §99(c)(1) (2015); Michi- gan: MICH. COMP. LAWS §750.539c (2015); Montana: MONT. CODE ANN. §45- 8-213 (2015); New Hampshire: N.H. REV. STAT. ANN. §570-A:2 (2015); Penn- sylvania: 18 PA. CONS. STAT. ANN. §5703 (2015); Washington: WASH. REV. CODE §9.73.030 (2015); Lane v. Allstate Ins. Co., 969 P.2d 938, 940 (Nev. 1998) (holding that the Nevada statute requires two-party consent). 18 18 U.S.C. §2510(1-2). 19 18 U.S.C. §2511(1)(a). 20 18 U.S.C. §2510(2).Vol. 27, 2015 Wiretap Statutes and Attorney Liability 267 defines “intercept” as “the aural or other acquisition of the con- tents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.”21 Therefore, a person violates the Wiretap Act by obtaining an audio recording of another person, whether by use of a smartphone, recording device attached to a phone, video record- ing, or otherwise, where the recorded person expected that the communication would not be recorded. The Wiretap Act does not prohibit silent video recordings, without audio. While excep- tions apply, as discussed below, this prohibition casts a wide net.22 The Wiretap Act’s reach extends even further to impose lia- bility for anyone who uses or discloses the communications de- scribed above, “knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsec- tion.”23 This “use and disclosure” liability presents added chal- lenges for the family law practitioner, as in the case where a client presents his or her attorney with an audio recording. At- torneys need to know what actions they can take in representing their clients without subjecting themselves to liability under the wiretap statutes. This question involves many challenging and unclear issues which are analyzed in Parts III and IV below. It is important to note that the Wiretap Act only governs interceptions of wire, oral, or electronic communications while in the process of being transmitted.24 Once the transmission is complete, actions to obtain this information are instead regulated by the Stored Communications Act, which applies to electronic communications while in electronic storage.25 For example, ob- taining copies of someone’s email, once received and stored, ab- 21 18 U.S.C. §2510(4). 22 See, e.g., Clark, 6 N.E.3d at 161 (recognizing that the Illinois version of the Wiretap Act “criminalizes a whole range of conduct involving the audio recording of conversations that cannot be deemed in any way private,” includ- ing recording “(1) a loud argument on the street; (2) a political debate in a park (3) the public interactions of police officers with citizens,” to name a few); see also Pride, supra note 5, at 135. 23 18 U.S.C. §2511(1)(c), (d). 24 18 U.S.C. §2511(1)(a). 25 18 U.S.C. §§2701 – 2711 (2014).268 Journal of the American Academy of Matrimonial Lawyers sent authority may violate the Stored Communications Act but not the Wiretap Act. B. Relevant Exclusions and Exceptions from Liability The text of the Wiretap Act itself excludes certain conduct from liability. A person is not liable under the Wiretap Act if the interception of the communication is not done intentionally. The Wiretap Act imposes liability for “intentional” interceptions.26 Therefore, if a person accidently records a conversation, for ex- ample by mistakenly pushing a button on a tape recorder or ac- cidently touching record on a smartphone, this conduct does not violate the Wiretap Act. The Wiretap Act also does not impose liability if a party to the communication consents to the recording.27 The federal Wiretap Act, like the majority of state wiretap statutes, is a one- party consent statute. Under one-party consent statutes, only the consent of one party to the communication is required.28 This requirement is satisfied by the consent of any party to the com- munication, including that of the person doing the recording. However, this consent is insufficient in the minority of states that require two-party consent, in which case consent of all parties to the communication is required. Further, in the majority of jurisdictions, case law has ex- panded the definition of consent to include vicarious consent on behalf of a minor child in specific circumstances where it is neces- sary to protect the child. In this case, a guardian may record a 26 18 U.S.C. §2511(1)(a); see Thompson, 970 F.2d at 748 (explaining that liability is imposed under the Wiretap Act only for intentional, not inadvertent, interceptions). 27 18 U.S.C. §2510(2) (defining “oral communication” as “any oral com- munication uttered by a person exhibiting an expectation that such communica- tion is not subject to interception under circumstances justifying such expectation”). 28 18 U.S.C. §2511(2)(d) provides as follows: It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communica- tion where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitu- tion or laws of the United States or of any State.Vol. 27, 2015 Wiretap Statutes and Attorney Liability 269 conversation between a child and a third party, often the other parent, and avoid liability under the Wiretap Act. Even though the guardian is not a party to the conversation, the guardian’s ability to vicariously consent on behalf of the child is sufficient to constitute consent under the Wiretap Act.29 However, practitioners should be mindful that courts have only applied the vicarious consent exception in the following lim- ited context: [A]s long as the guardian has a good faith basis that it is objectively reasonable for believing that it is necessary to consent . . . to the taping of phone conversations, vicarious consent will be permissible in order for the guardian to fulfill her statutory mandate to act in the best inter- ests of the children.30 In Pollock v. Pollock, the Court stressed that this vicarious consent exception only applied in certain situations, such as “ver- bal, emotional, or sexual abuse by the other parent.”31 The court directed that this exception “should not be interpreted as permit- ting parents to tape any conversation involving their child simply by invoking the magic words: ‘I was doing it in his/her best inter- est.’”32 Therefore, a determination of the consenting parent’s motive and intent in intercepting the communication is necessary to determine whether the parent’s actions violate the Wiretap Act. Some jurisdictions also recognize what is referred to as the “extension phone exception” when intercepting equipment pro- vided “by the phone company or connected to the phone line” is used in the “ordinary course of business.”33 For a communica- tion to be “intercepted” as defined by the Wiretap Act, it must be captured by an “electronic, mechanical, or other device.”34 29 Vicarious consent on behalf of the child is sufficient to constitute con- sent under one-party consent statutes, including the federal Wiretap Act and the majority of state statutes. However, in two-party consent states, even vica- rious consent on behalf of the child is insufficient to avoid liability where the other parties to the conversation have not consented. 30 Pollock v. Pollock, 154 F.3d 601, 608 (6th Cir. 1998) (citing Thompson v. Dulaney, 838 F. Supp. 1535, 1544 (D. Utah 1993)) (emphasis added). 31 Pollock, 154 F.3d at 610. 32 Id. 33 Babb v. Eagleton, 616 F. Supp. 2d 1195, 1203 (N.D. Okla. 2007); see Scheib v. Grant, 22 F.3d 149, 153-55 (7th Cir. 1994). 34 18 U.S.C. §2510(4).270 Journal of the American Academy of Matrimonial Lawyers Since use of an extension phone does not capture communica- tions by any of the means stated in the Wiretap Act, it arguably exempts such actions from liability under the Act.35 This excep- tion is inconsistently applied in family law cases and cannot be relied on to exempt clients or their attorneys from liability.36 Finally, as previously noted, the vast majority of jurisdictions do not recognize an interspousal exception to liability under the Wiretap Act.37 C. Criminal and Civil Penalties for Violating the Wiretap Act A person who violates the Wiretap Act is subject to criminal and civil liability, regardless of whether the violation is based on an unlawful interception of communication or the later use or disclosure thereof. Additionally, the Wiretap Act’s broad exclu- sionary rule will bar all recordings obtained in violation of the Wiretap Act from being admitted as evidence in any legal proceeding.38 Criminal liability may include a fine or imprisonment for up to five years or both.39 Civil liability may include actual damages or statutory damages in the amount of $10,000 or $100 per day for each violation, whichever is greater.40 An injured party may also seek punitive damages, profits made as a result of the viola- tion, injunctive relief, and attorneys’ fees.41 However, the Wire- tap Act limits the time for commencement of a civil action to no 35 See Babb, 616 F. Supp. 2d at 1203. 36 See Turkington, supra note 4, at 707 (noting that “recognition of a mar- ital conflict and parental extension phone exception for electronic surveillance under the Wiretap Act has been limited and subject to considerable critical commentary”). 37 See cases cited supra notes 1-3. 38 18 U.S.C. §2515 states as follows: Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the dis- closure of that information would be in violation of this chapter. 39 18 U.S.C. §2511(4)(a). 40 18 U.S.C. §2520(c)(2). 41 18 U.S.C. §§2520(b), (c).Vol. 27, 2015 Wiretap Statutes and Attorney Liability 271 “later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation.”42 Given the breadth of the Wiretap Act as discussed above, it is easy for practitioners to unintentionally violate the Act and subject themselves to liability. III. Attorney Liability for Violations of State and Federal Wiretap Statutes Many cases involving the wiretap statutes, both civil and criminal, deal with liability issues of family law practitioners. Often, aggrieved plaintiffs will include claims for tort liability in addition to claims for violations of the wiretap statutes. Attor- neys should also be aware that their actions in dealing with the wiretap statutes may result in disciplinary action for violations of the Rules of Professional Conduct or incite a malpractice action. The below analysis provides an overview of common issues and fact patterns implicating liability for family law practitioners under the wiretap statutes. There remain many unanswered questions about actions that run afoul of the wiretap statutes and Code of Professional Conduct due to the unending number of potential fact patterns yet to be examined and many conflicting applications of the statutes. Yet, these cases still aid in under- standing how to avoid common traps leading to attorney liability at the hands of the wiretap statutes. A. Civil and Criminal Liability Under the Wiretap Statutes Civil suits against family law attorneys for violating the wire- tap statues are more prevalent compared to criminal prosecu- tions, but cases where attorneys have been criminally prosecuted for violating the wiretap statutes are not unheard of. This discus- sion focuses on civil liability. However, the issues presented in civil and criminal cases are substantially similar, with the primary difference being that the burden of proof is much higher in a criminal prosecution for violation of the wiretap statutes com- pared to a civil suit.43 42 18 U.S.C. §2520(e). 43 See United States v. Wuliger, 981 F.2d 1497, 1509 (6th Cir. 1992) (stat- ing in reference to section 2511(1)(d) of the Wiretap Act that “the government272 Journal of the American Academy of Matrimonial Lawyers In civil suits, the person who is the subject of an allegedly unlawful recording, commonly a party to a domestic relations case, will sue the person who obtained the recording, frequently the other party to the domestic relations case, and may also join the party’s attorney in the suit. To prevail in a suit under the Wiretap Act, the civil claimant must prove that the defendant intentionally intercepted communication in violation of the Act or intentionally used or disclosed such unlawfully intercepted communication, knowing or having reason to know that the com- munication was unlawfully intercepted.44 There is no attorney immunity under the Wiretap Act,45 although some state courts have recognized attorney immunity for state law claims.46 Wire- tap Act claims proceed against attorneys “even when the attor- ney used the intercepted communication in the course of judicial proceedings.”47 The most common fact scenario involving attorney defend- ants in family law cases is attorney liability based on the attor- ney’s use or disclosure of a communication intercepted by the client, as opposed to attorneys actually intercepting communica- must prove beyond a reasonable doubt that the defendant knew or had reason to know that the recordings he used were obtained in violation of the Act”). 44 18 U.S.C. §§2511(1)(a), (c), (d). 45 See Wuliger, 981 F.2d at 1507 (stating that “[n]othing in the [Ohio] Code [of Professional Responsibility] ‘authorizes’ the defendant to violate Title III in carrying out his professional duties”);Lewton v. Divingnzzo, 772 F. Supp. 2d 1046, 1057 (D. Neb. 2011) (stating that “the court was unable to find any binding authority holding that an attorney who uses a communication inter- cepted in violation of the federal Wiretap Act is entitled to blanket immunity from Title III liability.”); Babb v. Eagleton, 616 F. Supp. 2d 1195, 1207 (N.D. Okla. 2007)(stating that “First, attorney did not cite, and the Court did not lo- cate, any authority holding that an attorney who uses a communication inter- cepted in violation of Title III is entitled to some type of privilege or immunity from Title III liability”). 46 In Scheib v. Grant, 22 F.3d 149, 156-57 (7th Cir. 1994), the court held that the defendants, an attorney and guardian ad litem involved in a removal case, had absolute immunity from liability under the Illinois Eavesdropping Statute where they used recorded conversations solely “in a manner intimately associated with the state court removal proceeding.” The court reasoned that “the truth-seeking process of a judicial proceeding will be most securely ad- vanced if attorneys do not fear civil or criminal liability as the consequence of misjudging the legality of disclosing particular information.” Id. at 156. 47 Babb, 616 F. Supp. 2d at 1207 (citing Wuliger, 981 F.2d at 1507-08); see also Thompson, 838 F. Supp. at 1548.Vol. 27, 2015 Wiretap Statutes and Attorney Liability 273 tions themselves. To establish liability for use or disclosure of an intercepted communication, the plaintiff must prove that the ini- tial interception violated the Wiretap Act and that the defendant used or disclosed the communication “knowing or having reason to know” that the communication was obtained in violation of the Act.48 Thus, in addition to proving that the initial intercep- tion violated the Wiretap Act, the plaintiff must also prove that the defendant knew “sufficient facts concerning the circum- stances of the interception such that the defendant could, with presumed knowledge of the law, determine that the interception was prohibited in light of Title III.”49 A review of relevant case law shows that attorney liability for use or disclosure of a communication intercepted by a client generally turns on the following three issues: (1) whether the cli- ent’s actions violated the Wiretap Act; (2) whether the attorney knew or had reason to know that the client unlawfully inter- cepted the communication; and (3) whether the attorney’s ac- tions constitute “use” or “disclosure” under the statute. 1. The Client’s Violation of the Wiretap Statutes The first issue in determining attorney liability for using or disclosing a communication intercepted by the client is whether the client in fact intercepted the communication in violation of the wiretap statutes.50 The plaintiff must still prove that the orig- inal interception violated the statute. Otherwise, there is no lia- bility for the later use or disclosure of that communication.51 For this issue, attorneys are at the mercy of their client’s actions and whether any exceptions apply to shield the client, and the attor- ney by extension, from liability. The attorney can raise as a de- fense to his or her liability the same exceptions to liability for the initial interception available to the client.52 48 18 U.S.C. §2511(1)(c), (d); see also Thompson, 970 F.2d at 749. 49 Thompson, 970 F.2d at 749; see also Lewton, 772 F. Supp. 2d at 1059. 50 See Babb, 616 F. Supp. 2d at 1206 (recognizing that “if no unlawful interception initially occurred, there can be no liability for subsequent use or disclosure of the interceptions by Attorney and Law Firm”) (internal citations omitted). 51 See Thompson, 970 F.2d at 749. 52 See Babb, 616 F. Supp. 2d at 1207.274 Journal of the American Academy of Matrimonial Lawyers For example, in Pollock v. Pollock, in the midst of a pro- longed custody case, the mother taped telephone conversations between her daughter and third parties, including her ex-hus- band, the daughter’s father.53 The father sued the mother and her attorneys for violating the Wiretap Act.54 The mother re- ported at least one recorded conversation to her attorneys in the custody case, and the attorneys in turn reported the conversation to the Crimes Against Children Unit.55 At issue in the case was whether the vicarious consent doc- trine exempted the mother’s actions from liability under the Wiretap Act.56 The court reasoned that for the vicarious consent doctrine to apply, the mother’s actions in recording her daugh- ter’s conversations must have been motivated by a genuine con- cern for her daughter’s best interests.57 Since there were conflicting facts regarding the mother’s true motivations, the court remanded the case to the trial court to resolve this issue.58 The court further reasoned that the liability of the mother’s attorneys would be determined, in part, by the issue of fact re- garding the mother’s liability, namely her motivations in record- ing her daughter’s conversations.59 If the vicarious consent exception applied, the mother and her attorneys would be ex- empted from liability under the Wiretap Act.60 However, if the mother’s motivations were such that the vicarious consent excep- tion did not apply, the liability of the attorneys would then be determined based on whether they knew or had reason to know the mother’s interceptions violated the Wiretap Act.61 Similarly, in Babb v. Eagleton, the attorney defendant was sued by his client’s ex-husband for violations of the Wiretap Act.62 The client used a telephone recording device to record conversations between her children and their father, the client’s 53 Pollock, 154 F.3d at 603. 54 Id. at 602. 55 Id. at 604. 56 Id. at 602-03. 57 Id. at 611. 58 Id. at 611, 613. 59 Id. at 612-13. 60 Id. at 612. 61 Id. at 613. 62 Babb, 616 F. Supp. 2d at 1198.Vol. 27, 2015 Wiretap Statutes and Attorney Liability 275 ex-husband, on at least sixteen occasions.63 The client recorded the conversations after filing a motion to modify custody.64 The client then disclosed the intercepted communications to her at- torney and the parenting coordinator involved in her pending custody case.65 The ex-husband sued the client, her stepfather, her attorney, the attorney’s law firm, and the parenting coordinator.66 The ex- husband alleged that the attorney and parenting coordinator vio- lated the Wiretap Act for using and disclosing the intercepted communications in the custody case.67 All defendants filed mo- tions to dismiss.68 The attorney raised as arguments for dis- missing the case the same arguments the client made regarding applicable exceptions to liability for the initial interceptions.69 Since the court determined that these arguments failed to sub- stantiate the client’s motion to dismiss, they likewise failed to substantiate the attorney’s motion to dismiss.70 The court deter- mined, in part, that the ex-husband stated a claim against the at- torney and denied the motion to dismiss.71 As these cases demonstrate, the attorney’s liability for using or disclosing communications intercepted by a client is tied, in part, to whether the client’s actions violate the Wiretap Act. Therefore, before using or disclosing such information, it is advis- able for attorneys to use due diligence to determine how the in- formation was obtained, as further discussed in Part IV below. 2. The Attorney’s Knowledge of the Client’s Actions in Violation of the Wiretap Act The second issue that commonly arises in connection with attorney use and disclosure liability is whether the attorney knew or had reason to know that the client unlawfully intercepted the communication. Ignorance of the law does not provide a shelter 63 Id. at 1197-98. 64 Id. at 1197. 65 Id. at 1198. 66 Id. 67 Id. at 1198. 68 Id. 69 Id. at 1207. 70 Id. 71 Id. at 1210.276 Journal of the American Academy of Matrimonial Lawyers from liability.72 However, if the attorney did not know or have reason to know the facts that would show the client’s intercep- tion was unlawful, the attorney will not be liable under the Wire- tap Act for using or disclosing the intercepted communication. This issue presents a question of fact for a jury to decide.73 Case law provides little guidance regarding how much inves- tigation the attorney is required to conduct to avoid liability. Be- cause the attorney having “reason to know” the relevant facts may subject the attorney to liability, regardless of actual knowl- edge,74 it is advisable for attorneys to do their due diligence to determine how the client obtained the recording rather than choose to remain ignorant of these facts. By way of example, in the criminal case of United States v. Wuliger, the attorney’s conviction for using and disclosing re- cordings made by his client was reversed on appeal and re- manded for a new trial due to the failure of the jury instructions to properly state the knowledge the attorney was required to have for a conviction.75 The defendant, attorney William Wuliger, was initially convicted under the Wiretap Act for “in- tentionally using the contents of telephone conversations re- corded in violation of section 2511(1)(a) on three separate occasions.”76 Mr. Wuliger was the divorce attorney for Mr. Ricupero.77 Mr. Ricupero used a wiretap device to record his wife’s telephone calls over a one week period.78 Mr. Ricupero then gave