In the last week, attorneys for Michael Cohen, President Donald Trump’s former attorney, have disclosed at least a dozen taped conversations between Cohen and his former client. Do clients now have to worry that their attorney, the person they have entrusted with their legal affairs, will record their conversations without consent?
In 2001, the ABA withdrew its 1974 Formal Opinion 337, which prohibited attorneys from secretly recording or taping conversations. Since 2001, it has not been per se against the Model Rules for an attorney to record without consent. Several state bars have followed suit and reversed their stance on attorneys recording without knowledge or consent of the other party, so long as it does not violate federal or state law.
Federal law allows one party consent, and the majority of states do as well. A handful of states such as Florida, California, Pennsylvania, and Maryland require consent of all of the parties involved in the conversation. In the states that allow one party consent, attorneys are not statutorily barred from secretly recording conversations; however, there is still a potential ethical issue.
Although it has been 17 years since the shift, there are still many ethical questions associated with attorneys secretly recording conversations. The ABA is still divided on whether an attorney may record a client. This debate has come to life nationwide for both attorneys and non-attorneys with the Cohen-Trump attorney-client relationship. Cohen admitted to recording clients in lieu of note-taking without notifying his clients of the practice. People in and out of the legal profession have joined the debate on both sides. A 2006 GP Solo article, “To Tape or Not to Tape: Secret Recordings,” describes the advantages and disadvantages of allowing lawyers to secretly record conversations.
In summary, the pros include prevention of losing evidence due to memory failure, evidence to impeach a witness, and an increase in factual information to resolve a dispute. As for the cons, such practices can reflect badly on the profession as they appear deceptive, it can decrease trust, and it may create discoverable material that would not have been available otherwise. These are some of the same points made in the debate today, including in Cohen controversy.
When it comes to recording a client, if the state bar has not deemed it unethical, there must be a justifiable reason. An attorney may not record for any fraudulent or deceitful reason, as this is a direct violation of the ABA Model Rules. Even if it is considered ethical, there are still various other implications that may dissuade an attorney from secretly taping a conversation.
Before an attorney records a conversation without the other party’s knowledge, there are several things to consider. First, check the laws of your state and the state’s ethic’s opinions to ensure that you are not violating any statutes. Second, be aware of the implications on discovery—you may have to produce recordings. Third, if you are recording a client, weigh the benefits against the potential negative impact on the attorney-client relationship and your client’s case. Trust is the foundation of this relationship and partaking in any secret act may damage it. Finally, if you are asked whether the conversation is being recorded, you must admit that it is; failure to do so is a violation of the ABA Model Rules.
Brittany Levine is with Austin Law Firm in Raleigh, North Carolina.