Three Requests in a Custody File: Drone, Tracker, and a Pretext Call
A family-law attorney retains you in a custody dispute. He sends three instructions in one email: (1) fly a drone over the ex-husband's fenced backyard in Kentwood on Saturday afternoon to film him with the children during his parenting time; (2) stick a magnetic GPS tracker under the rear bumper of his pickup, which sits in the driveway overnight; and (3) call his new girlfriend, pose as a customer-service representative from a utility company, and confirm that he lives at the address. You have already delivered 40 minutes of video shot from the public sidewalk in front of the house, showing him carrying the children's bicycles into his garage. He closes with: 'You're working for me, so attorney-client privilege covers all of it - just get it done.'
1. Analyze each of the three requests under Michigan law, state what you would do about each, and explain what status the already-delivered sidewalk video has.
Read the worked answer
Drone over the fenced backyard - decline. MCL 750.539d prohibits installing, placing, or using a device to observe, photograph, or record another person in a private place without consent. A fenced residential backyard is the paradigm private place, and the children's presence makes it worse. Separately, commercial drone operation requires compliance with FAA Part 107 rules, but the state privacy statute is the reason to refuse.
GPS tracker - decline, absent the owner's written consent. Michigan has no statute squarely prohibiting a private party from placing a tracker on a vehicle, so the exposure is common-law: trespass to chattels and intrusion upon seclusion. If tracking becomes a repeated course of conduct directed at him, MCL 750.411h (stalking) becomes a live risk. The client does not own the truck; her marital interest in it does not authorize physical interference.
Pretext call - decline. Posing as a utility employee is a knowing misrepresentation made to extract information. It is not a listed crime in itself, but it exposes the firm to fraud and unfair-trade-practice claims, destroys your usefulness as a witness, and would be devastating if she records it. Michigan generally permits a party to a call to record it, so the legality of the recording is not the problem - the lie is.
Sidewalk video - keep it. Observation from a public street of a driveway and open garage is generally lawful: no reasonable expectation of privacy, no trespass, no device in a private place. Preserve the original files and do not crop in a way that changes the meaning.
2. The attorney says privilege covers everything and he will take the heat. How does that change your analysis and your own exposure?
Read the worked answer
It changes almost nothing about your conduct, and that is the key point to put in writing.
Privilege protects confidential communications between the attorney and the client. It does not authorize a tort or a crime, and it does not shield the investigator who commits one. If you flew the drone or planted the tracker, you would be the defendant, and you would be the witness the other side subpoenas. The attorney's instruction may actually make things worse for both of you: it shows the conduct was deliberate, which supports punitive damages and undermines any claim of good faith.
There is also a professional dimension. An attorney who directs an investigator to violate a statute is exposed under the Rules of Professional Conduct, and you would be the person who made that exposure provable. A vague verbal instruction is easy to reinterpret later; a written refusal is not.
Practical steps: reply by email, restate the three requests in neutral language, state which one you will perform (none of the three, as framed), and offer alternatives. Do not editorialize about the attorney's ethics. Keep the exchange in the file. If he insists a second time, escalate to a partner or decline the engagement in writing - and remember that declining is cheaper than being deposed.
3. You decline all three requests. What alternatives preserve the client's objectives?
Read the worked answer
The client's real objective is a documented pattern of behavior for a custody evaluation, not a drone clip.
- Residence verification: property records, voter registration, a subpoena through counsel to the utility, or a process-server affidavit. None requires a lie.
- Presence and routine: continued observation from public streets and other public vantage points; note arrival and departure times, who is present, and what is visible from the street. Build a log over weeks rather than one dramatic afternoon.
- Parenting-time behavior: request the children's activity logs, school pickup records, and any pediatric or therapy records through discovery; interview third-party witnesses such as neighbors, coaches, and teachers, subject to counsel's direction.
- Depositions and interrogatories: the cheapest and most defensible evidence in a custody case is often the party's own answers under oath.
- Guardian ad litem and evaluator: feed documented observations to the court-appointed evaluator rather than to social media or to the client directly.
- Consent-based options: if the client jointly owns the truck or has access to the residence, get her written consent, and even then reconsider whether the optics help her.
Frame the memo around what a judge will find persuasive and what will look like harassment. That argument lands better with a family-law attorney than a lecture on statutes.