Lawyers taping clients – is it legal, ethical?

By Andrew Zashin*

It seems that Michael Cohen, former personal attorney for President Donald Trump, is finding himself in the news almost as frequently as his former client. And, of course, some of the latest and biggest attention-grabbing headlines focus on recorded conversations between Cohen and Trump from September 2016, in the midst of the presidential election.

The commentary has poured in fast and furiously. Who knew what and when about certain payments? What are the implications of those payments? And, what does it all mean more widely?

While of course I find those questions (and the still-evolving answers) interesting, as a lawyer – and one who is frequently a recipient of recorded “evidence” of something or other that my clients believe will be relevant in their pending legal matters – a just-as-interesting aspect of this situation is that a lawyer taped his client, apparently surreptitiously, and then outwardly admitted to having done so. In fact, according to Cohen’s attorney, Cohen may have routinely recorded such conversations.

Is this legal? Well, federal law requires only one party to consent to the recording of telephone and in person conversations. But state laws can vary. It would appear that Cohen’s taping of his client was legal, as the recorded conversation happened in New York which also only requires the consent of one party to a recorded conversation. For the record, Ohio is a one-party consent state, too.

So it is legal. But is it ethical? This answer is less clear.

Under the rules governing the professional conduct and ethical behavior of attorneys, the question is largely one of whether the behavior is dishonest, fraudulent or deceitful. Historically, the idea of taping a client was categorically labeled as improper. But with the prevalence of recording devices – after all, most of us routinely carry around a recording-capable device vis-à-vis our smart-phones – as well as the pervasiveness of surveillance and security cameras, and a general decrease in privacy outside of our homes, opinions on the topic seem to be softening a bit.

The American Bar Association, which constructs model rules and language that often gets wholly or partially adopted by states, published a 2001 opinion indicating that it might be OK for a lawyer to surreptitiously record a client so long as it is legal in the state in which it is being done and there is a justifiable reason. In New York, where the taping occurred, there does not appear to be a wider consensus on what circumstances would make the taping of a client acceptable.

The Board of Commissioners on Grievances and Discipline for the Supreme Court of Ohio has issued its opinion, leaving open the door for recording in some situations, but generally advising against it. And, as for the “routine” taping that Cohen is said to have engaged in? Probably not OK, universally, unless the client was made aware that the recording was happening.

The ultimate fallout from this particular recording is still being determined. From an ethics standpoint, it seems that Cohen’s purpose in recording this particular conversation will matter and may be the turning point between “acceptable” and “unethical.” His true purpose and intent may or may not ultimately come out. But, then again, given the constant influx of salacious headlines, this particular event might not be at the top of Cohen’s list of current worries.

This article originally appeared as a column for the Cleveland Jewish News.