In the wake of the discovery that Michael Cohen had covertly taped a conversation between himself and Donald Trump, the following question has been raised: is it ever permissible to record a conversation with a client without obtaining his or her consent? Recording
The short answer: sometimes. The legality of taping a secret recording hinges upon the consent requirements of each state’s wiretapping laws. Every state has adopted either a one-party consent requirement (a conversation can be recorded without the other person’s consent), or a two-party/all-party consent requirement (all parties to the conversation must be aware that the conversation is being recorded). Washington, D.C. is included among the 38 states and territories that have adopted the one-party consent rule, as well as Alabama, Georgia and New York.
Even in a one-party consent state, where it may technically be legal to record the conversation, attorneys should be mindful of the ethical implications inherent in recording a client without his or her knowledge. In 2001, the ABA released Formal Opinion 01-422, which updated the Committee’s previous, more conservative stance on the subject of consent. Formal Opinion 337, released in 1974, stated that a lawyer could not record any conversation without the permission of all parties involved. The softened 2001 Opinion provided that attorneys needed to consult the laws of their respective jurisdictions before proceeding with a plan to record a conversation without client consent, but that it was not strictly unethical under the Model Rules. However, attorneys who do so run the risk of committing a Model Rule 8.4(c) violation – 8.4(c) provides that it is professional misconduct for an attorney to engage in conduct “involving dishonesty, fraud, or deceit.” Attempts at secretly preserving the contents of a conversation could be construed as deceitful or dishonest.
In conclusion, any attorney who considers recording a conversation with a client should proceed with caution, taking into account the relevant wiretapping statute and legal ethics rules governing their jurisdiction.
Read the ABA opinion here. The full list of state-by-state consent requirements can be found here.
