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While marital spying could land a spouse in hot water, it’s also putting attorneys in some sticky situations. Divorce lawyers say they are treading very carefully as to how they handle feuding spouses who spy on each other, noting that a growing number of clients are using controversial-and sometimes illegal-methods. Given the technological boom, they note, husbands and wives have taken spying to a new level, using gadgets like nanny cams and spyware. “We are finding ourselves in situations where we’re viewing this material as contraband. We don’t want it in the office,” said Atlanta divorce attorney John Mayoue, who in the last year has handled about 100 divorce cases involving marital spying. “Today there are a lot of devices that allow people to engage in self-help spying, which is really brand new to us.” The subject of marital spying grabbed national headlines last month in New York, where federal prosecutors announced they were investigating whether Jeanine F. Pirro, the Republican candidate for state attorney general, illegally wiretapped her husband to find out if he was having an affair. Pirro conceded that she had her husband followed, but denied using wiretapping, or any other illegal means, to spy on him. Beware of clients’ hardware Meanwhile, Mayoue, of Atlanta’s Warner, Mayoue, Bates & Nolen, cautions attorneys to be careful when discussing spying tactics with clients, noting that they could be held liable if they review, or even know about, private information obtained illegally. Lynne Z. Gold-Bikin, former chair of the American Bar Association’s Section of Family Law, echoed his sentiment, noting that electronic spying and other forms of marital snooping have put divorce attorneys in a tough spot. She said that clients will often tell their lawyers they have proof that their spouses are cheating, but they won’t disclose how they got it. Other times, they might wiretap or open private e-mails without knowing this was illegal, and then tell their lawyer about it. “Lawyers have to be extremely careful not to condone this and not to listen to it,” said Gold-Bikin, a lawyer in the Norristown, Pa., office of Philadelphia’s Wolf, Block, Schorr and Solis-Cohen who heads the firm’s family law practice. “But if your client comes in and says, ‘I have come into some information,’ ” hire a detective [to confirm it].” Attorneys note that home computer wiretapping has become a popular form of marital spying, given the many companies that advertise surveillance products on the Internet. In New Jersey, computer wiretapping played a key role in a recent divorce case in which a woman won $7,500 after proving that her husband used a monitoring device to track her transactions and e-mails during divorce proceedings. Garfinkel v. Garfinkel, No. A-4500-03T24500-03T2 (N.J. Sup. Ct.). Divorce attorney Karin Duchin Haber, of Haber & Silver in Florham Park, N.J., who represented the husband, would not comment on the case. She did, however, note that she’s “definitely” seen an increase in marital spying in recent years. A few years ago, Haber represented a man whose wife-suspecting an affair-bought him a $400 alarm clock as a gift with a hidden camera inside. The husband discovered the camera during divorce proceedings and successfully sued his wife on domestic violence charges. “They leave incredible tracks,” she said of spying spouses. Cyberspying played a key role in a recent divorce case in Florida, in which a state court ruled that a wife who installed spyware on her husband’s computer to record evidence of an extramarital affair violated state wiretapping laws. In February 2005, the court held that it is illegal to intercept electronic communications, and ruled that chat records could not be introduced as evidence in the couple’s divorce proceeding. O’Brien v. O’Brien, No. 5D03-3484 (Fla. Ct. of Appeals 5th Dist.). Appeals expert Ryan Thomas Truskoski, who represented the wife in the case, said his client did nothing illegal. He maintained that the woman had installed software that only took a picture of the screen, but did not intercept any e-mails. To be illegal, he said, communication needs to be intercepted, adding that that didn’t happen here. “It was the first court in the nation to rule on this issue and they got it wrong,” said Truskoski, a solo practitioner in Orlando, Fla. “And what people do on their family computers at home shouldn’t be subject to criminal liability.”

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