Does Lawyer’s E-Mail Snooping Merit 2-Year Suspension?

Legal Ethics

Does Lawyer’s E-Mail Snooping Merit 2-Year Suspension?

Posted Mar 3, 2008, 07:23 pm CDT
By Martha Neil

Corrected: At first, when attorney Michael Markins accessed his wife's e-mail account at the law firm at which she worked, he was trying to find out whether she might be having an affair.

But then, having figured out the uncomplicated password system there, the Charleston, W.Va., lawyer admittedly began accessing other lawyers' e-mail accounts at his wife's firm, out of "selfish curiosity," reports the Charleston Gazette. At the time of the electronic snooping, the firm at which Markins worked, Huddleston Bolen, was on the opposing side of mass flood litigation from the firm at which his wife was an associate, Offutt, Fisher and Nord. However, the OFN firm does not believe any confidential client information was compromised.

"On at least one occasion, an attachment from OFN's chief accountant to the partners containing confidential financial information about the firm had been opened and reviewed," according to a West Virginia Supreme Court brief filed by the State Bar's Lawyer Disciplinary Board. The brief, upon which the newspaper's account is based, says Markins accessed OFN e-mail more than 150 times between 2003 and 2006.

"Eventually, one of OFN's lawyers began to suspect that her e-mail account had been improperly accessed," the newspaper recounts. "The firm's computer consultant found that an IP address belonging to the Huddleston firm had been used to read e-mail on multiple occasions."

Both Markins and his wife lost their jobs after the intrusion was discovered, although he reportedly landed another position with John R. Fowler that paid $80,000 a year—a $2,000 pay raise over his Huddleston salary, the brief states.

The Lawyer Disciplinary Board is recommending a two-year suspension of his license. But Markins' attorney, Mike Callaghan, says his client is contesting this "very harsh" punishment, which Callaghan describes as "excessive for the acts committed."

Corrected at 7:15 p.m. March 4 to note that Michael Markins practices in Charleston, W.Va.

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Posted by Paul - 7 months, 3 days, 8 hours, 46 minutes ago

Charleston, W.V., NOT Charleston, S.C.
Posted by annette - 7 months, 3 days, 8 hours, 37 minutes ago

This is ridiculous! Sure, suspend his license—who knows what other unethical shenanigans he’ll get up to. But why should his wife lose HER job???
Posted by Mike Hunt - 7 months, 20 hours, 43 minutes ago

He’s insecure, but she’s dumb for marrying the jerk. Lawfirms can’t have dummies around compromising confidential information. It would have been easier if she had been fitted for a chastity belt. That way, he could have avoided this problem. He should get one too, and put it over his head--dumb yutz!
Posted by Bobbielee - 7 months, 19 hours, 55 minutes ago

The firm should also be sanctioned for its careless breach of the duty of confidentiality. It has an ethical duty to protect its email with adequate passwords and encryption.
Posted by Emily Colby - 7 months, 19 hours, 44 minutes ago

I think the post by Mike Hunt (#3) is a bit unfair regarding the wife. We do not know from this article whether she knew or should have known her husband was prone to this type of behavior. The firm’s decision is somewhat understandable from a client relations perspective, but unfortunate for the wife.
Posted by anonymous - 7 months, 19 hours, 38 minutes ago

She should have known he was a jerk. He cheated on her all through law school. How he thought she had time to cheat I dont’ know. They had infant twins at the time. But just to show how prejudice the legal community is to women, he had a new job right away it took her about six months.
Posted by Art Kreiger - 7 months, 19 hours, 35 minutes ago

150 times in opposing counsel’s email system over 3 years?! He should be disbarred, not suspended. He can’t be trusted to do any law-related task honestly, ever. And Anneltte (#2) is right.
Posted by A. L. DeWitt - 7 months, 19 hours, 8 minutes ago

I agree w # 7. It is no different than bugging the offices of the other side. The lawyer could have had access to litigation strategy and confidential information. Disbarment is appropriate for the hacker/lawyer, and the managing partner of the hacked firm should get a stern rebuke for not employing adequate computer security.
Posted by TAH - 7 months, 18 hours, 2 minutes ago

Absolutely! No way can this guy be trusted.
Posted by Christine - 7 months, 16 hours, 58 minutes ago

I believe he may be facing more than a suspension, it is my understanding this may be a violation of Federal law. If so, and it is a crime of moral turpitude (I dont know answer) then he loses his license as well as his freedom. Next time hire a private investigator!
Posted by Christine - 7 months, 16 hours, 55 minutes ago

harsh punishment for covertly violating the attorney client privileges of the the other law firms clients? I think it is not harsh enough.
Posted by I.P. Standing - 7 months, 16 hours, 35 minutes ago

#3, Mike Hunt? Really. Are we still in sixth grade? My goodness.
Posted by Michael - 7 months, 16 hours, 15 minutes ago

Harsh my (***). I see felony criminal sanctions in this guy’s future, let alone grounds for disbarrment. (And, the lax security of the hacked firm is NOT a defense for the hacker to have done his criminal acts.) I say throw the book at him. (The thought that he quickly got a job but his wife didn’t just galls me as well.)

(And, #13—True, but talk about calling the kettle black!)
Posted by Mark S. Simon - 7 months, 15 hours, 59 minutes ago

This situation highlights the irony that law firms generally respect the need to safeguard client confidences, but take a minimalist approach to information security controls.
Posted by Robert B. Briggs - 7 months, 14 hours, 52 minutes ago

I hope the West Virginia bar and Supreme Court are checking these comments. A two year suspension is too lenient for this level of illegal, dishonest and unprofessional conduct. In our state, disbarment and a moratorium on re-application for membership would be appropriate. I would not be surprised if this fellow loses his marriage as well, I hope the couple does not have children. This fellow needs some restraightening of his moral fiber.
Posted by K. Bee - 7 months, 14 hours, 13 minutes ago

From the article: “Offutt put her on administrative leave with pay. Later that day, her husband’s attorney called OFN and said that Andrea Markins had told her husband two days earlier that the firm was searching for the intruder and she thought they were close to catching him. Markins had confessed to his wife that he was the intruder, his attorney said.

OFN later fired Andrea Markins “for being untruthful,” the brief states.” Not that they should’ve taken the husband’s word for it…
Posted by Theodore G. Fletcher - 7 months, 13 hours, 43 minutes ago

I agree with # 7 & #8 and following: disbarrment is in order. It is also clear that he wasn’t simply reading his wife’s e-mail, as if that wasn’t bad enough.
Posted by Andrew Wichers - 7 months, 12 hours, 3 minutes ago

Two years is not harsh. Disbarrment would be more appropriate!!!

Furthermore, the OFN firm should also be sanctioned for its careless Information Technology (IT) practices and possible breach of security of confidentiality. OFN has a fudiciary responsability and duty to protect its email and web site access with frequent password changes and robust encryption.
Posted by A Grafals - 7 months, 9 hours, 57 minutes ago

Christine is correct in #10. I believe what they are describing is a violation of the Stored Electronic Communications Act (18 USC 121). If the information he read had not yet been viewed by the intended recipient, he could also be guilty of violating the federal anti-wiretapping laws (18 USC 119). Plus, there are state privacy law implications and state wiretap and stored communications laws may be an issue. Not to mention, the rights of privacy and confidentiality belong to the clients and individuals whose information he illegally accessed.

This guy should consider himself lucky if all he gets is a 2 year suspension or disbarrment.

I wonder if his wife ended up leaving him after all. Wouldn’t that be a sort of ironic justice?

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