Landlord admits to monitoring tenant’s phone records, and reading tenant’s emails

Barry Swope accesses his tenant’s phone records

In June 2017, Independent Press Journal (IPJ) contacted an attorney for background information on an investigation – the attorney was never named in any IPJ story. Several months later, Barry Swope, a Daphne Alabama resident, contacted IPJ claiming to have reviewed the private telecommunications activity between the IPJ investigator and that attorney.

Swope specifically indicated that he had gained access to those records because the law firm is a tenant in his building, and because the attorney’s phone lines go through his system.

In an email sent to IPJ on January 20th, 2018, Swope wrote:

“Do you remember [attorney’s name]? The attorney for [attorney’s client’s name] that you contacted back in June? I bet you didn’t know that she rents from me did you? That her phone lines go through my system?”

IPJ has chosen to redact the name of the attorney and the attorney’s client for privacy purposes, and because the attorney was a background source on a previous investigation, which is why IPJ had been in-contact with the attorney in the first place.

The property:

The building is located at 6642 Park Drive, Daphne, AL., and currently serves as the business address for Barry Swope’s counseling practice, as well as two other businesses – one of which is the law firm that IPJ privately contacted back in June.

According to Baldwin County property records, between the years of 2009-2012, a company named SREM, LLC, managed by Barry Swope, was the listed owner of the property.

Since 2013, the property’s registered owners have been Barry Swope’s in-laws – whose identities are being withheld at their request.

When asked if they owned the property, Barry Swope’s father in-law replied: “Yes and no. It’s a property that my son in-law owned, and he got into the condos on the coast, and he got in over his head, and he had the bank problems, and in order to, I had to, more or less, me and my wife had to take over the building, but other than that, right now, it is in my and my wife’s name.”

Records indicate that Swope filed for bankruptcy in May of 2011.

Approximately 18-months later, ownership of the property on Park Drive in Daphne was transferred to his in-laws.

When asked about the tenants at the property, Swope’s father in-law stated: “We have no business relations with his tenants at all.”

Barry Swope accesses email content

On January 22nd, IPJ contacted the law firm by telephone to inform the attorney that Swope had admitted to accessing his tenant’s telephone records. The attorney did not answer, so a voicemail was left.

IPJ then sent the attorney an email expressing concern for client confidentiality, as well as the confidentiality of attorneys (opposing counsel) and others who may have a reasonable expectation of privacy when contacting the law firm.

12-hours later, Barry Swope (not the attorney) responded.

In his email, Swope indicated that he has access to (and reads) the attorney’s emails, including the contents of the email that IPJ’s had just sent to the attorney:

“I saw your response and professionalism on display with your concern for all of [attorney’s name]’s clients. [Attorney’s name] is going to be breathing fire if she ever finds out about me filtering out her spam emails!”

Barry Swope suggests that the attorney has not seen IPJ’s email because he filtered it out. Swope also indicates that he filters the attorney’s emails at his discretion, and without the attorney’s knowledge.

Implications:

If the attorney is aware that Swope is monitoring and reviewing the law firm’s communication records (and content), then that could violate attorney/client confidentiality.

Without the attorney obtaining informed consent from every client, giving Swope access to such confidential communications would violate Rule 1.6: “Confidentiality of Information,” American Bar Association (ABA), which states:

“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.”

In addition to client-attorney confidentiality – ethically speaking – Swope’s access to the law firm’s communications records (and email content) would have likely required disclosures to opposing counsel, whose clients may not agree to Swope reviewing attorney-to-attorney communications related to their cases.

Barry Swope’s access to communications would certainly be a concern to prospective clients of that law firm as well, most of whom would have a reasonable expectation of privacy when interacting with an attorney.

If the attorney did not give him permission to monitor and review the law firm’s communications, then Swope’s statements are an admission that he broke the law by eavesdropping on the private communication of others without their consent.

In Barry Swope’s email, he implies that the attorney does not know that he is filtering the emails, saying, “[Attorney’s name] is going to be breathing fire if she ever finds out…”

The IPJ investigator who spoke with the attorney in June 2017 was not aware that the communication was being monitored by Swope, nor was consent given for him to monitor the communication.

Based on Swope’s statements, it appears that he had neither the attorney’s consent, nor the IPJ investigator’s consent to monitor communications between the two parties.

Never the less, Swope’s statements indicate that he reviewed the attorney’s private communications as far back as June 2017, and as recently as January 2018 – accessing phone records, and reading the contents of emails too.

Alabama Code Title 13A. Criminal Code § 13A-11-30 defines eavesdropping as to “overhear, record, amplify or transmit any part of the private communication of others without the consent of at least one of the persons engaged in the communication.”

According to Alabama Code § 13A-11-31, criminal eavesdropping is a Class A Misdemeanor.

Cases related to eavesdropping by property managers have also resulted in plaintiffs (tenants) filing civil suits against the property owner(s) for invasion of privacy and negligence.

Swope’s in-laws (the property owners) assert that they are unaware of Swope’s actions as a property manager, and that they are not involved in the management of that property.

It is unclear if the attorney is aware that Swope is monitoring the law firm’s communications – including reading the emails sent to the attorney.

The attorney could not be reached by telephone, nor did the attorney call-back, even after multiple voicemails were left.

Numerous emails have been sent to the attorney, but based on Barry Swope’s statements, it is unclear if the attorney is receiving those communications.

IPJ has vigorously sought comment/clarification from the attorney in the last week.

The attorney has not responded.

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