Posted Feb 07, 2014 03:01 pm CST
A judge on Maine’s top court is using a lawyer’s ethics case to criticize U.S. Cellular for turning over thousands of subpoenaed text messages in a divorce case.
Justice Donald Alexander said U.S. Cellular violated a federal privacy law, report the Associated Press and the Morning Sentinel. “The Stored Communications Act includes no exception authorizing text message content disclosure based on a civil discovery subpoena,” Alexander wrote. The company’s release of “sensitive and privileged material appears extraordinary,” he said, given the current national privacy debate.
U.S. Cellular released the text messages in response to a subpoena by Waterville lawyer Charles T. “Tom” Ferris, who sought the messages from the estranged wife of his divorce client, Alexander said in a Jan. 31 suspension order (PDF). At one point, Ferris claimed he had obtained 50,000 text messages from U.S. Cellular. The Legal Profession Blog also notes the case.
Alexander ordered that Ferris be suspended for six months for sending multiple subpoenas to the cellphone carrier without giving notice to the opposing party. The text messages he obtained contained privileged texts between the wife and her lawyer and cancer doctor.
Alexander also faulted Ferris for delegating to his divorce client, who was also his cousin, responsibility for dealing with U.S. Cellular and for accessing, copying and viewing the texts. The client was subject to a temporary protection order obtained by his wife, though there were no findings of abuse during a hearing on the final order.
Ferris’ access to the texts resulted in a favorable result in the case, Alexander said, because the estranged wife “desired to end the tension, harassment and embarrassment in the community.” The wife believed that some texts had been disclosed to members of the Waterville community.
The subpoeanas had been served on an attorney acting as U.S. Cellular’s registered agent. They did not specify whether the texts were sought for the divorce case or the request for an order of protection, Alexander wrote. Ferris also sought and obtained text messages from the estranged wife’s employer, whom she later married, the order says. At the time, the employer was not a party to the litigation.
Alexander said bar counsel should contact the Maine Attorney General and U.S. Attorney to notify them of U.S. Cellular’s practices.
“While federal law would not appear to permit much recourse against U.S. Cellular for violations of laws intended to protect cellphone users’ privacy,” Alexander wrote, “it may be important to know that U.S. Cellular access practices apparently permit individuals who are subject to protection from abuse orders, domestic violence complaints, and criminal investigations to utilize subpoenas to access the cell phone records and text messages of persons protected by protection from abuse orders and persons who may be crime victims or witnesses.”
U.S. Cellular Corp. spokeswoman Kelly Harfoot told the Associated Press that the company was looking into the matter.
Peter DeTroy represented Ferris in the ethics case. He told the Morning Sentinel that Ferris’ mistakes were “unfortunate and inadvertent,” and they were disappointed with the length of the suspension. They may ask the court to reconsider.
“Family law cases are the most challenging for lawyers,” DeTroy told the newspaper. “That was a case, for a number of reasons, where he just sort of got knocked off balance and couldn’t get back on balance. He’s basically a good, solid lawyer who basically got in a blind spot.” Ferris received a private dismissal with a warning or minor misconduct in 2002, but had no other prior sanctions.