By Steve Thorpe
Legal News
Tapes recorded secretly by attorney Michael Cohen of his former client and now President Donald Trump and others are in the hands of investigators. Cohen had made a practice of recording telephone conversations, including with clients, unbeknownst to those with whom he was speaking. Don Campbell concentrates his practice in Attorney Grievance Defense, representation in Judicial Tenure matters and Legal Malpractice Defense. In addition to his law practice, he has served as an adjunct professor of law at the University of Detroit Mercy School of Law teaching courses in Ethics and Criminal Law, since 2002. He also has taught a seminar in Corporate Law and Ethics.
Thorpe: Is it common for attorneys to secretly record conversations with clients?
Campbell: More than two centuries ago, Cicero lamented, “o tempora, o mores.” Which I understand to mean “oh how the times have changed and oh how morals/customs have changed, too.” I think among lawyers who record conversations it is likely very common to record those conversations without any special notice or indication that it is being done.
While not strictly generational, for the generation that grew up with iPhones, I expect they record more often and even likely expect to be recorded more than any previous generation. I still think this a minority of lawyers but, given enough time, the custom will likely continue to shift.
Thorpe: Most states allow for recordings of phone conversations with only the consent of one party; other states require all parties to agree to a recording or have mixed laws on the matter. Where does Michigan stand on the issue?
Campbell: Michigan is a one-party consent rule. There are some important nuances that matter if a third-party is actually doing the recording or if there is an expectation of privacy. Cohen’s consent alone to the recording he personally made, if done in Michigan, is likely not illegal.
Thorpe: Would Cohen’s recording be ethical in Michigan?
Campbell: I am unaware of any discipline case involving the recording of a client. Yet, both when I was prosecutor at the AGC and since, I have encountered a number of matters where such recordings were involved. There is a non-binding ethics opinion that disfavors recording a client without notice.
In law school they still teach that cross-examination is the “greatest engine for the discovery of the truth.” Cicero may have said that one, too. Whoever said it, I am quite certain that person did not have a surreptitiously recorded conversation to play. That said, I have seen juries that simply hated the concept of secret recordings and who would not consider that evidence and would even react harshly against the recorder. I suspect that is changing, too.
Thorpe: How does “privileged communication” figure into recordings?
Campbell: The privilege will still apply if the recording meets Mr. Wigmore’s elements for such (actually as most know it is a modified Wigmore these days, o tempora ...). It is no different than if a lawyer had written it down and then someone wanted to use the notes of the conversation. One could posit that because of the privilege, there is no impropriety in making the recording.
That is, it can’t and won’t be used until or unless the client’s later conduct or statements make the information subject to an exception to the confidentiality rule under MRPC 1.6(c) or MRPC 3.3. So, having the recording, like having the notes, does not put the client at risk – only the client’s later actions or statements can do that.
Thorpe: The rules are sometimes slow to keep up with technological change. Are there laws or bar guidance that you believe should be updated to reflect these changes?
Campbell: We live in a recorded time. One would think it would actually promote better conduct as we are all both watching and being watched more than ever. And, maybe it has. One thing, however, that I believe remains constant is that, for lawyers, reputation is still the most important ingredient in a successful career. Truth is, recordings can save a lawyer’s reputation. I have witnessed that. But, at the same time, being known as a lawyer who records may not be the best reputation to have. I don’t think the rules are the place to address these issues.
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