Privacy law, just like ethics, lags technology

By Diane Karpman

Karpman

Hollywood and Lawyer-land are obsessed with the names on Anthony Pellicano's client list. The buzz is reminiscent of what surrounded Hollywood Madam Heidi Fleiss' little black book. Pellicano, a private investigator, is accused of illegal wiretapping. Many lawyers employed his services, and if they knowingly engaged in criminal conduct, then their professional liability policies may not provide coverage.

Los Angeles lawyers are reviewing their unexplainable "mystery" losses. Emotion-ally, it is far more satisfying to suppose that the reason you lost a case was because of investigators "gone wild," rather than acknowledging certain deficiencies in the long forgotten case that is suddenly alive in your mind.

Usually, a nonclient or third party is prohibited from directly suing a litigation adversary. How-ever, in addition to remedies like extrinsic fraud, those clients who failed to prevail may have independent actions against opposing counsel for invasion of the right to privacy. Privacy is strongly protected in the California Constitution. If the data involved financial or medical issues, these may also be viable independent claims, because the exercise of our personal liberties is entitled to the utmost sanctity.

In Jeffrey H. v. Imai (2000) 85 Cal. App. 4th 345, defense lawyers disclosed an automobile victim's HIV status in arbitration documents. During discovery, they happened to obtain medical records, and just happened to disclose the HIV status — several times, "intentionally" in the arbitration documents. The sacrosanct concept of privacy even overcame the "absolute" litigation privilege, which was vigorously argued by the defense attorneys. They maintained that the plaintiff, in filing the claim, put his health information "at issue." The court rejected this claim, because in California, privacy is statutorily fortified and can trump the vast immunization provided by the litigation privilege.

On Capitol Hill and in State Houses, legislators are scrambling to protect the privacy of cell phone records, which can easily be bought on the Internet. A host of Internet companies merchandise cell phone information, which is illegally obtained by "pretext," such as impersonation. Remember, you can buy lots of illegal stuff on the Internet, but when you receive stolen property, it is still stolen. If you cannot directly engage in an act, doing it indirectly by employing a middleman, whether an investigator or a pretexting company, does not make it kosher.

Privacy law, like ethics, lags behind technology. Justice Stephen Breyer stated: "The result is that the law of privacy is a little out of date in certain respects and it has to be changed. Everybody thinks it has to be changed, but not everyone agrees how." Reflections of a Junior Justice. 54 Drake L. Rev. 7-13 (2005).

The wireless carriers have joined the bandwagon with various attor-neys general (Texas, Illinois and California), the FTC and the FCC, bound and determined to shut down "pretexting" companies that pander private information.

• Diane Karpman, a legal ethics expert, can be reached at 310-887-3900 or at karpethics@aol.com.