Dear Client: Questions to Ask & Warnings to Give

It was a pleasure speaking with you today. As we discussed, I will enter my appearance on your behalf and file an answer forthwith. In the meantime, there are certain actions I advise you to take with regard to your privacy, and certain actions I advise you not to take.

To Do...

1. If you need to speak with me, call my office and my secretary will arrange a mutually convenient time for us to chat. We do not advise communication by e-mail as the integrity of e-mail cannot be guaranteed.

2. Do change your e-mail account to one that is Web-based, and that no one but you has access to. Discontinue use of your current e-mail address, if possible.

3. If you have a computer at home that you share with your spouse, and if you believe the computer contains information that is relevant to the proceedings, do let me know as soon as possible and we will have the hard drive sequestered and/or imaged.

4. Do password protect your files, but also understand that a password on a computer or a voicemail system does not protect you from prying eyes and ears. A good computer expert can get around your passwords, and your spouse may be able to guess at them anyway.

5. Do assume that the word processing documents, Excel files, stored e-mails, and all other information on your computer have been viewed and/or copied by your spouse, or can be used as evidence against you in your divorce proceeding.

6. Expect that even if the computer you use is kept at your place of business or is owned by your employer, it may be subpoenaed by the opposing counsel.

7. If you gave away or sold your computer, understand that opposing counsel may be able to subpoena it from the new owner.

8. Do consider that spyware may currently be installed on your computer. This means that without your knowledge someone else may be able to monitor all of your computer conduct.

9. If you have installed spyware on your spouse's computer, uninstall it immediately.

10. Expect that any transmission you send by voicemail, e-mail, instant messaging, or text messaging can be obtained by the opposing counsel and can be used against you.

11. Expect that any message, whether written or oral, can be taken out of context and used as evidence for another purpose.

12. If you must communicate with your spouse (or anyone else for that matter) via e-mail, write a draft and save it before you decide to send it.

13. Understand that many phones, Ipods, MP3 players, and similar devices are equipped to record and may be used to tape conversations between you and your spouse.

Do Not...

1. If you use a home computer, (a) do not continue to use this computer if you can avoid it. Do not attempt to "wipe clean" the hard drive. Only a professional can do this adequately, and the courts do not look favorably on what looks like an attempt to destroy evidence. Don't do anything on the computer that you wouldn't want the world to know and see.

2. Do not vent to your spouse on the phone on via voicemail or through e-mail.

3. Do not leave any message on an answering machine or voicemail system that you do not want a judge to hear.

4. If you have not installed spyware on your spouse's computer, do not install it now.

5. If you have a "MySpace" account, a "Face Book" account, an online journal or you engage in online chatrooms or online dating, STOP RIGHT NOW. All of the information that you are so innocently sharing with your online "friends" may be discoverable. Also, your new chatroom buddy may even be your spouse in cyber disguise.

6. If you have a blog, do not post anything personal about yourself or your case. The information you post may become evidence.

In summary, advancements in technology have thrust our society into a world without walls. The downside to these advancements is an inherent lack of privacy and a desensitized concept of proper boundaries. In addition, we have become so used to the reality shows and talk shows that we are accustomed to seeing intimate details of a person's life flash before our eyes. If you do not want to see your private life on an exhibit in a courtroom, we strongly advise you to consider the above warnings. These actions are designed to protect your privacy. I will be sending along in the future questions concerning places where data relevant to your divorce might be stored.

Please take these directions seriously. Federal law governs access to computers and e-mail, and you don't want to start a divorce case in violation of the law. FA



Mr. Soni is an associate of The Rosen Law Firm in Raleigh, North Carolina, where he focuses on family law and divorce mediation. He served as Vice Chair of the Technology Committee of the North Carolina Bar Association's Family Law Section. William Darrah practices family law in Honolulu, Hawaii, where he has been Chair of the HSBA's Annual Divorce Law Update Program since 1994 and Editor of the Monthly Journal of Hawaii Family Law since 1989.

Published in Family Advocate, Volume 29, No. 3, Winter 2007. © 2007 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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