Two former attorneys at Legal Aid of NorthWest Texas have sued the organization and two of its executives, alleging the defendants violated the Texas Wiretap Act when a telephone conversation they had at work was intercepted and recorded.

In their Sept. 17 petition filed in the 298th District Court in Dallas, Kervyn B. Altaffer Jr. and Sophia Katherine Palat allege LANWT, Errol Summerlin, its chief executive officer, and Michael Prince, its manager of information technology, violated Texas Civil Practice & Remedies Code §123.001, et seq. by intentionally intercepting and recording a Sept. 3, 2009, telephone conversation they had with a co-worker in violation of LANWT policy and state law.

Altaffer and Palat decline to discuss the subject or content of the telephone conversation.

In their petition in Kervyn B. Altaffer Jr., et al. v. Legal Aid of NorthWest Texas, et al. , the plaintiffs allege LANWT’s employment manual “prohibits employees from making any recordings while on premises, at office events, or while acting in the course and scope of employment without express written consent of all parties.” They also allege that Prince recorded the telephone conversation and then “divulged the contents” to Summerlin and others. Altaffer and Palat allege Summerlin used contents of the conversation “to attempt to impose discipline” on them, without “conducting a proper investigation or talking to Altaffer or Palat.” They allege the “recording was disclosed and divulged to multiple employees.” [See the petition.]

Altaffer and Palat, who worked in the Dallas LANWT office, seek temporary and permanent court orders to prevent the defendants from making any further disclosures of the content of the telephone conversation, statutory damages in the amount of $10,000 for each occurrence that violated the Texas Wiretap Act., actual damages, and punitive damages resulting from defendants’ actual malice “e.g., ill will, spite, evil motive, or purpose to injure another.”

They also allege LANWT is liable for the acts of management employees Prince and Summerlin.

Summerlin refers comment to Shelby Jean, a spokeswoman for LANWT, who says, “It’s unfortunate that two former employees have decided to take this course of action, and we look forward to having our day in court.” Jean says she is speaking on behalf of LANWT, Summerlin and Prince.

Altaffer and Palat, now practicing together at Altaffer & Palat in Austin, each say they resigned from LANWT after they learned in mid-September 2009 that their conversation was recorded.

Palat says she joined LANWT in January 2006 and thought about leaving in 2008, but ultimately stayed. In September 2009, when she learned that the telephone conversation had been recorded, Palat says she quit that day.

“I handed in a letter, and I left. This was kind of a big deal,” Palat says.

Altaffer, who joined LANWT in July 2002, says he also resigned in September 2009, but gave a 90-day notice because he was a manager. He says he had no prior plans to leave the agency.

The two lawyers started Altaffer & Palat in January, where they do commercial and consumer litigation, bankruptcy, and labor and employment work.

John E. Wall Jr. of Dallas’ Law Offices of John E. Wall Jr. represents Altaffer and Palat. David Curtis of David M. Curtis & Associates in Dallas is defending LANWT, Jean says.

Speaking generally, two labor and employment lawyers and a law professor say employers need to put employees on notice before recording them without their consent.

“Unless there is specific authorization, or a manual puts employees on notice that their calls may be monitored, I’m not aware that an employer can do something like that,” says A. Martin Wickliff Jr., Houston managing shareholder of Epstein Becker Green Wickliff & Hall.

Linda Headley, a Houston shareholder in labor and employment firm Littler Mendelson, says the recording of a telephone conversation would be problematic if no one consented to it. She notes that it’s permissible to record a telephone conversation in Texas if one of the participants consents.

Professor Richard Carlson, who teaches labor and employment at South Texas College of Law, says whether or not an alleged recording complies with the Texas Wiretap Act, plaintiffs may nevertheless have a claim for common-law invasion of privacy, “which depends, in part, [on] whether the employees had consented to this kind of intrusion.”

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