Each separate illegal use or disclosure of intercepted communication can be a federal or state felony and can result in a $10,000 civil penalty (plus actual damages and attorney’s fees).
Consider this example from criminal defense attorney Mark Bennett’s excellent blog (click here to read his entire post):
Just before Duke’s first unsupervised visit, Dianna bought a small digital recorder online. Dianna unstitched a bit of her daughter’s favorite teddy bear-known as “Little Bear”-and stuck the recorder inside, stitching the animal back up afterwards. The recorder never left the bear’s guts after this, except when the animal was washed. With no voice activation feature, the gadget simply recorded everything that happened in its presence, and Dianna periodically unstitched the bear just enough to insert a USB cable and download the audio recordings to her computer.. . . . .
All of this material was then turned over to Dianna’s lawyers, who submitted it to the state court and waited for a ruling on its legality. In the summer of 2008, the state judge decided that the recordings were not admissible as evidence in the custody trial, since they violated the Nebraska Telecommunications Consumer Privacy Protection Act and were therefore obtained illegally.
The court has carefully considered Mr. Bianco’s role in this matter and finds that damages should not be awarded against Mr. Bianco. Bianco did not solicit or advise the Divingnzzos to intercept the plaintiffs’ oral communications. While he disclosed the illegally-obtained materials to advance his client’s position in the Custody Case, the court did not consider the materials. The other recipients returned the materials unread or maintained the confidentiality of the communications.
The lawyer, who could easily have been ordered to pay $60,000 as well, got lucky in part because “the other recipients…maintained the confidentiality of the communications”-something entirely out of his control (and not, strictly speaking, a legal defense).
Moreover, both the lawyer and his clients got majorly lucky in another way: by not getting indicted. If the Divingnzzos or Bianco had popped up on the radar of the U.S. Attorney for the District of Nebraska, they could easily have been facing zero-to-five-year felony wiretap charges.
The Federal Wiretap Act (which applies to interception of phone, voice and electronic communications) can make a lawyer a criminal if she:
The Texas Wiretap Act is basically the same as the federal law except a lawyer can commit a crime if she is reckless in using an illegal recording or communication (which is a much broader standard of liability than “knows or has reason to know the information was obtained through [an illegal] interception…”). Under the Texas law, a person commits a crime if she…
Tex. Penal Code § 16.02(b).
The Austin law firm Noelke English Maples St. Leger Blair, LLP has provided excellent guidance for attorneys that we all should follow: