Celebrating 10 years! 2007-2017

Is it legal for a lawyer to tape his client?

And then reveal it to the public? jdslug07/25/18
If it's in New York, it's legal because it's a one party con therewillbeblood07/25/18
Tape the client doing what? pauperesq07/25/18
Tape him giving facts for the purpose of proving legal advic jdslug07/25/18
Tape it? depends on the purpose. If it's just to use as esse flharfh07/25/18
Not unless the client has waived the attorney-client communi jeffm07/25/18
Atty-Client privilege is different than confidentiality. massivemissive07/25/18
TITCR. 2tierreality07/25/18
paragraph (b): ... (5) to establish a claim or defense jeffm07/25/18
I would say that in a one-party consent state, it may be leg onehell07/25/18
For example, in a fee dispute, a recording can be very usefu jeffm07/25/18
The rate will be in the signed retainer and will not be in d onehell07/25/18
I understand your predisposition to think everything relevan jeffm07/25/18
I think something like "you were never authorized to settle" onehell07/26/18
We are getting to the point of beating a dead horse, but if jeffm07/26/18
I've not seen that in the magazine section I get every month onehell07/26/18
It would be legal in my state to record without telling the fettywap07/25/18
It happens more often than people care to admit, especially patenttrollnj07/27/18
jdslug (Jul 25, 2018 - 11:25 am)

And then reveal it to the public?

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therewillbeblood (Jul 25, 2018 - 11:47 am)

If it's in New York, it's legal because it's a one party consent state.

Revealing it to the public would have been an ethical violation, if Trump had not through his lawyers waived attorney-client privilege of the tapes.

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pauperesq (Jul 25, 2018 - 11:43 am)

Tape the client doing what?

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jdslug (Jul 25, 2018 - 11:45 am)

Tape him giving facts for the purpose of proving legal advice.

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flharfh (Jul 25, 2018 - 11:48 am)

Tape it? depends on the purpose. If it's just to use as essentially audio-recorded notes and you have permission to do so, probably okay but not best practice.

Do so without permission or release it to the public? Almost certainly not, assuming by "legal" you also include violating your state's attorney ethics code.

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jeffm (Jul 25, 2018 - 11:49 am)

Not unless the client has waived the attorney-client communications privilege. Some months back (maybe 1 -2 years ago), this issue happened in the open on AVVO. Client gave attorney a bad review. Attorney replied, publishing all the facts to controvert client's story. Client complained attorney disclosed confidential information. Attorney claimed client waived the privilege by lodging the public complaint and necessitating the "full" story. Grievance to bar ensued. IIRC, bar held attorney divulged too much and should have been less detailed on the facts.

As far as taping, this is jx specific. In my jx, you can tape any conversation to which you are a party. This is not the law in some other jxs.

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massivemissive (Jul 25, 2018 - 12:18 pm)

Atty-Client privilege is different than confidentiality.

Client-Lawyer Relationship
Rule 1.6 Confidentiality Of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)....

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2tierreality (Jul 25, 2018 - 5:39 pm)

TITCR.

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jeffm (Jul 25, 2018 - 5:44 pm)

paragraph (b):

...

(5) to establish a claim or defense on behalf of the lawyer in a *controversy* between the lawyer and the client... or to respond to allegations in any *proceeding* concerning the lawyer's representation of the client;

(emphasis mine, be sure and check whether a "controversy" requires court proceedings)

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onehell (Jul 25, 2018 - 12:30 pm)

I would say that in a one-party consent state, it may be legal but why would you want to do it? The only reason to do it is because you might at some point want to use it against your client and as described above, privilege would usually preclude that (though if there is an actual malpractice action or bar complaint there is some obvious leeway for self-defense if the minimum necessary amount of info is used).

Even if you don't use it for anything that could be seen as a confidentiality breach, if your client finds out you have it then he will presumably demand a copy and since it would be considered part of his file, you'd probably be duty-bound to give it to him. If the reason you were making the tape is because the atty/client relationship was falling apart, the client will then be examining that tape for anything you said that may have been wrong in order to use it against you.

In other words, I can't see how it could possibly help and I can see several ways that it could hurt the lawyer. That's essentially because the client has the right to the tape upon request and can use it for whatever he wants because privilege belongs to the client not the lawyer, whereas you will be highly limited in what you can use it for if you can use it at all.

That's why the industry-standard practice if you need to document what you told the client is to follow up with a confirming letter "we discussed abc and you were advised xyz." If you ever do end up being permitted to divulge a letter like that to defend in an actual malpractice case or bar complaint (NOT a negative Avvo review!) then business records usually win the day in a he-said/she-said dispute anyway.

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jeffm (Jul 25, 2018 - 5:11 pm)

For example, in a fee dispute, a recording can be very useful if the client admits the deal was X or that X in fees is reasonable, etc.

I wouldn't underestimate the value of a recording just because it is of the client. That said, I'd still be very clear in my understanding that state laws and rules of ethics permit this.

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onehell (Jul 25, 2018 - 6:30 pm)

The rate will be in the signed retainer and will not be in dispute. I don't know how a conversation with the client could be relevant to the question of whether you really did spend X hours on Y task, or whether it was reasonable to spend that number of hours on such task, or (in a contingent case) whether you really should still get 33% of a case that settled on a demand letter.

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jeffm (Jul 25, 2018 - 7:21 pm)

I understand your predisposition to think everything relevant to a fee dispute winds up in writing, but this is far from the case IRL. It's difficult to predict where a client will try to weasel you out of your fee. There are often claims of breach of fiduciary duty, ultra vires conduct, etc., coupled with a discharge and a new attorney demanding disgorgement and your consent to substitution of counsel.

That's just one type of dispute. There are a million ways things can go south, and when they do, email trails are almost never as complete as we would hope. This is the time when recordings might be obtained to fill in the critical gaps.

I can assure you if the shoe was on the other foot, a client being sued for a fee might do well to record his attorney to get an admission. "Can you get your attorney on tape admitting you never authorized him to settle your case?"

You shouldn't count out the value of recordings, even if you don't like the practice. Evidence is evidence.

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onehell (Jul 26, 2018 - 1:01 pm)

I think something like "you were never authorized to settle" would be more in the nature of a malpractice allegation than a fee dispute. And what lawyer doesn't get written authorization from client before accepting a settlement?

And as you said, the shoe often is on the other foot. When people tape conversations, they often find that they said things that hurt them as well as help. Remember, Nixon taped everything because he thought it would help him, too.

The whole thing seems unnecessary unless you have been remiss about putting things in writing, in which case you'd be better off just getting on the ball about sending confirming letters.

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jeffm (Jul 26, 2018 - 2:32 pm)

We are getting to the point of beating a dead horse, but if you read your bar's disciplinary reports, you might find that accusations of settling without consent come up with some regularity.

The whole thing *becomes* necessary when the documentation, itself, is insufficient.

Feel free to critique the attorney who failed to memorialize something in writing, but now, you've got a lawsuit. What are you going to do?

This isn't a question of how best to run a practice on a looking-forward basis. This is about how you deal with tough situations that are imperfect.

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onehell (Jul 26, 2018 - 3:12 pm)

I've not seen that in the magazine section I get every month that has all the suspensions and disbarments and whatnot. Usually it's ghosting clients and/or overdrawing trust accounts, both of which are usually linked to personal problems of the lawyer like drinking/drugs/divorce. Don't think having the lawyer on tape when he's on his third belt of scotch at 9:00AM on a Tuesday would do much good.

If it happens in your state obviously won't question your experience, but round here the usual practice is you either get client authorization in writing or even just have them sign the stip itself.

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fettywap (Jul 25, 2018 - 5:24 pm)

It would be legal in my state to record without telling the client. I had a client once who was trying to extort money from me and would not stop calling. I did not report him, but someone else might want to in that situation.

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patenttrollnj (Jul 27, 2018 - 2:12 pm)

It happens more often than people care to admit, especially at small firms.

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