Family attorney Phil Newman discusses surveillance ethics scenarios and what to do if a client asks you to do something unethical.
Last week I posed several ethics questions related to surveillance and privacy. For answers, I turned to my longtime friend and colleague Phil Newman, a family attorney in Franklin, Tennessee. To close our conversation, we zoomed out a bit and discussed a common problem lots of professionals face: what to do if someone offers to hire you to do something that doesn’t seem quite legit.
Listen to our interview below for his advice about several scenarios domestic surveillance operatives commonly face, or scroll down to read the edited transcript.
HAL HUMPHREYS: Attorneys think about ethical matters differently from most people because they’ve got this strict ethical code. Talk to me about why attorneys have such a strict code. And why, if a private investigator is working for an attorney as his agent, he is bound by that same code.
PHIL NEWMAN: Part of that is the nature of the attorney-client relationship is such that we’re often called upon to protect privileged information, sometimes very sensitive information. It’s important for lawyers to be guided by very strong ethics, in terms of what they can and can’t do, what they can and can’t reveal.
HAL: I’ve got a couple of scenarios with several variations. The first setup is: Client is leaving town for a long weekend. He believes wife is at home using drugs while she’s taking care of the kids. So can you put a camera in the house? Can you put a camera in the backyard by the pool, or can you put one in the garage?
PHIL: I would be concerned that putting a camera in the house that the wife didn’t know was there would be similar to putting a recording device in the house, in that you might run afoul of wiretapping statues, state or federal, if she didn’t know. I’ve had that come up in cases before — not my cases, but cases I’ve mediated, and there’s been litigation about that. And I would be nervous about advising a client to put a camera up to surveil their spouse while they were not there.
HAL: Let’s talk about the backyard. It’s a privacy fence around the backyard, they have to have a key or a code to get into the backyard. But it’s outside. Is that OK?
PHIL: I think I’d be careful. There’s a possibility that if you’re surveilling your spouse in the house you own together, that perhaps there’s a diminished expectation of privacy, if it’s a house you live in and visit on a regular basis versus setting something up in someone else’s house where you don’t have an ownership interest, for example. That might help you if you’re setting something up in a house that you have an ownership interest in.
HAL: Same scenario, you’ve got a house, the garage faces a street, and all the neighborhood kids have been alerted that it’s OK to come into this garage and take toys. The house has go-carts and bicycles and skateboards and all manner of toys, and the neighborhood kids feel comfortable opening this garage, coming in, and taking stuff out. Would that make a difference? Is the expectation of privacy less if everybody comes in and accesses?
PHIL: In terms of putting a camera up in the garage?
PHIL: Yeah, I would certainly think so. To me it’d be almost like a family computer that everybody uses in the house — the kids use, the mom and dad both use. I think putting some kind of key-logging software on that computer, something like that, (and if it’s not password protected and they all use the same password, same email account), there’s a diminished expectation of privacy there. I think you could make a pretty good argument that if the backyard is not fenced in or if there’s a swingset back there, neighborhood kids come in and out all the time and play in the yard, I think you could argue there’s a diminished expectation of privacy also.
HAL: We keep coming back to the phrase “expectation of privacy,” and that’s the key.
PHIL: Swimming pool, same way. If you’re foolish enough to leave it open and let neighborhood kids use it, I think it would be difficult for the wife if she’s home to argue that her privacy was violated, because there’s a camera up, if there are people coming in and out all the time.
HAL: Right. So how about this: You’re doing surveillance on someone, and you’re walking down the street, and the backyard — there is a chain link fence, and you can see right into the backyard. Cool to take video from the street of that?
PHIL: I think absolutely. If you’re on public property, I think you can take pictures of the front of the house, take pictures of them coming out of the house, if you want to. Unless they’ve got a restraining order that says you’ve got to remain 100 feet away from this person, then you can be 101 feet away. I think you could stand on the street, take pictures of the windows, people in the windows.
HAL: Right! If it’s visible to the general public, and anyone could see inside, that would be, I would think, fair game.
PHIL: Again, I think it’s also a diminished expectation of privacy.
HAL: OK, so there’s a privacy fence, and the only way you can see into the backyard is to stand on the trunk of your car and look over, is that OK?
PHIL: I think that’s a problem.
HAL: What about a drone?
PHIL: That would create a whole series of problems. To me, my argument if I am the wife, would be that’s the same thing as getting a ladder and leaning it against the back of the fence. That you’ve got no business flying a drone over that house. That it’s just another way of invading privacy.
HAL: I see that as the equivalent of doing a Kilroy over the fence.
PHIL: Sure. Or if you had X-ray vision goggles. Same deal.
HAL: OK, last question. We’ve had several people ask this question. If you’re working for an attorney-client, and they ask you to do something that you feel uncomfortable doing ethically, what should you do as an investigator?
PHIL: The same thing I would do as a lawyer if a client asked me to do something I feel uncomfortable about: Follow your gut. If it doesn’t pass the smell test, don’t do it. One of our judges just told us, you can spend 20 years building a reputation, and you can lose it in 20 minutes. So if it doesn’t feel right, let them find another investigator. Say that this is not the kind of thing I’m going to do. Somebody else might, but I won’t.
Because in my view, there’s no relationship I have with any client that’s more important than my reputation. It’s the same thing with an investigator: There’s no one client that’s so important you want to risk your license or your reputation in the business.
“You can spend 20 years building a reputation, and you can lose it in 20 minutes.” —Phil Newman
HAL: And the interesting thing is I have had clients in the past ask me to do things that I was uncomfortable with, that I felt were unethical, and I said, “No, I’m sorry, I can’t do that.” And they got angry at me initially, but they have ended up being some of my better clients over time.
PHIL: I think they’ll respect that. If a lawyer has hired you and knows you’re going to be ethical, I think he or she’s going to respect that about you and it probably will lead to a more productive long-term relationship.
HAL: Phil Newman, thank you so much for taking the time to talk to me. I have a notion we’ll have people chime in with other ways to handle the scenarios, which is part of the fun of this work!
PHIL: Yes, it is! Thanks, Hal!
About the guest:
Phil Newman practices family law, including divorce and post-divorce proceedings, child support and parenting plan modifications, parental relocations, and juvenile court matters. He’s also listed as a Rule 31 mediator with expertise in collaborative divorce and collaborative practice. He has successfully kept more than 250 civil litigation and family cases out of court through mediation.