Law firms rarely issue guidance to their lawyers on whether they can record phone calls without disclosing they are doing so to the other parties on the line.
In the wake of The Washington Post’s reporting that President Donald Trump’s personal lawyer, Michael Cohen, regularly taped phone calls, questions have arisen about the practice. Legal ethics experts say law firms probably should issue such guidelines, but few, if any, do.
“This is an issue on which the national profession has not come to common agreement,” said Stephen Gillers, a professor at New York University School of Law and an authority on legal ethics.
Earlier this week, federal prosecutors seized Cohen’s office files and computers as part of an investigation into allegations he made payments to women who had affairs with the president to keep them silent on the subject. Cohen, who previously had a strategic alliance with Squire Patton Boggs and was given an office on the firm’s 23rd floor at Rockefeller Center, “was known to store the conversations using digital files and then replay them for colleagues,” according to the Post article, which attributed the information to people who interacted with Cohen.
Representatives at five Am Law 100 firms either did not respond or declined to comment when asked about their firms’ policies and practices regarding lawyers recording phone calls.
The undisclosed taping of phone calls is, of course, prohibited if illegal. And it is illegal if the other party does not consent and the jurisdiction is a two-party consent jurisdiction.
California is a two-party consent jurisdiction. New York is not.
But on the ethics front, bar associations have issued a welter of conflicting opinions about the topic.
“In New York, an old State Bar opinion says taping without consent is unethical even if legal. The City Bar, in a more recent opinion, takes the position that it is almost always unethical and would be so if it were a routine practice. The County Bar takes the position that it is not unethical if legal in New York. The American Bar Association takes the position that it is not forbidden by the Model Rules,” Gillers wrote in an email.
Gillers says that law firms, in order to protect themselves, should have a policy of forbidding taping except in narrow circumstances where it can be justified, such as when there is reason to believe that the other party is engaging in threatening behavior or inviting a bribe.
“Even then, the firm has to be sure the taping is legal and ethical in the jurisdiction. And no lawyer should be allowed to make this decision on his or her own in the lawyer’s own case. The decision should be made by a member of the executive or ethics committee. There should be a writing explaining the justification,” he wrote.
Laurie Levenson, a professor of law at Loyola Law School in Los Angeles, agreed that firms should have policies limiting undisclosed taping. But she noted that most firms don’t have those policies. “It is problematic,” she said.
Ronald Minkoff, a partner at Frankfurt Kurnit Klein & Selz who leads the firm’s professional responsibility group, agreed that few, if any, firms have issued formal policies limiting lawyers’ taping of calls unbeknownst to the other parties on the phone.
But he said firms most likely have not issued written rules about taping because few lawyers would even think of taping calls in that manner, and certainly not as part of their daily routine.
But there are the rare lawyers who do regularly tape conversations, Minkoff said.
“I once worked in a firm where a partner routinely taped calls. You could tell him until the cows come home that what he was doing was not ethical and not proper,” he said. “It wouldn’t have mattered.”
If questioned about his tactics, the taping-happy partner would reply: “‘What better source do I have than a tape recording if they question me?’” Minkoff recalled.
Since New York laws don’t forbid such taping and the bar associations have issued guidance pretty much all over the map, Minkoff doubts any lawyers are getting in trouble for taping there.
However, “if you have a standard policy of always taping, that may cause problems,” Minkoff said.