Clients often ask us whether we tape-record phone calls we make in the course of an investigation. Our brief answer is, “never.” Here is why:
- Recording could be illegal.
Some states allow tape recording conversations if one of the two people in the conversation is aware that a tape is rolling, but some require that both parties be aware. These include California, Florida, Illinois, Pennsylvania, Massachusetts, Connecticut and several more.
What’s the problem with deciding you’re in a one-party state, calling up someone and letting the tape roll? Say the person you are calling has his phone forwarded to a two-party state. Even if you think you are calling someone down the street from you, how are you to know the phone isn’t ringing in Miami or L.A.?
- Even if legal recording could be construed to be unethical for lawyers. Since we are lawyers, we pay the same close attention to the ethical rules as our clients do.
In a wonderful story in the current issue of the ABA’s Litigation News, (website here but current issue not on line yet), the ABA’s Lisa R. Hasday delivers a thorough survey of the various ethical rules that govern phone recording. In short, it’s a minefield out there and any decision to tape is one that our clients would need to approve only after some serious reflection and research.
The one-party states fall into four categories.
- Surreptitious recording is not unethical in Texas, Tennessee, North Carolina, Minnesota and a variety of other states. Of course, the same problem as avoiding a two-party state applies: a person sitting in Dallas calls a Houston number with the tape rolling, but the Houston number is answering the call in Orlando. Potential problem.
- Surreptitious recording is unethical except in certain circumstances in New York, Virginia, Colorado, Kentucky, Indiana and a few other states.
- Surreptitious recording is evaluated on a case-by-case basis in Arizona, Michigan and Wisconsin.
- Some states have no position on surreptitious recording. These include Georgia, New Jersey, Nevada, Louisiana and Arkansas, among others.
What’s the big deal courts make of taping when legislatures say it’s OK? It stems from ABA Model Rule of Professional Conduct 8.4(c) which has been adopted in most states, and says that lawyers commit professional misconduct if they “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
According to Hasday’s article, “courts have almost uniformly determined whether secret recording is misconduct based on additional facts surrounding the recording and not merely on the fact of the recording itself.”
The cases in which secret recording is most likely to be allowed involve the limited categories that have allowed attorneys to tell lies in the course of their duties: investigations into intellectual property infringement, housing discrimination, and for a lawyer’s self-preservation.
- A recording could be legal and ethical, but is it admissible?
The decision to record a phone call is one that should be among the most heavily researched and carefully considered of the thousands of decisions a lawyer makes during the course of a matter. Even then, getting the recording admitted as evidence presents its own set of problems of authentication.
What kind of recorder is it? Is the operator competent? Were there any changes made to the recording? Are the speakers on the call identified? Did they speak without inducement?
Sometimes, making a recording of a phone may be a make-or-break decision in a case. But in our experience, recording has never been important enough to risk breaking the law, professional sanctions, and failure to get the material admitted.