It would be tempting to say “your divorce attorney can never record your conversations”. If only it were that simple. In one sense, it is. After all, have you ever heard of a divorce attorney recording a conversation with a client without his or her knowledge or consent? It’s incredibly improbable.
Issues With Recording Conversations
There are at least three issues to address when it comes to recording conversations:
- The type of recording. Is it video? Audio? Both?
- The laws of your state regarding audio recording. Video is a very different issue.
- The ethical rules regarding attorney-client communications.
Types Of Recordings
First, it is appropriate to limit this conversation to audio recordings, which are far more protected than video recordings. In regards to video, a homeowner or business owner is relatively free to record their owned or leased space – usually for security purposes.
Audio Recording State Laws
Second, in Maryland, before you can make an audio recording of anyone, it must be done with his or her knowledge and consent. There are many nuances to these laws, but the simple truth is that you cannot capture anyone’s voice without their knowledge and consent.
How does this play into the current news that President Trump was secretly recorded by his former attorney, Michael Cohen? It depends upon the laws of the state in which the recording occurred. Some states do not require “two party consent.” This could have made such taping initially lawful. In Maryland, it would not be.
Third – and this is where it gets very clear – an attorney cannot act to impair his or her confidentiality with a client, except in the event of the direst circumstances, such as the immediate threat of death or serious injury to the client or to someone else.
Interestingly, the client who tells his or her attorney that she is about to commit suicide, and provides the attorney with specific details as to when, where, and how, might provide the attorney with the “option” of contacting law enforcement, mental health professionals, family, or friends with an appropriate and timely warning to protect the life of the client.
However, even that does not allow the attorney to audiotape his or her client. The attorney could face civil, criminal, and ethical sanctions for such conduct. Even though law is supposed to reflect life, attorney-client privilege is one of those areas where privacy and confidentiality are hallmarks.
Ask your attorney whether he or she would ever audio or video record you under any circumstances without your knowledge or permission. If his or her answer is not an immediate and emphatic “NO” you may want to consider finding another attorney.