Vail Law: Laws on recording conversations vary state to state (column)
July 31, 2018
Can you record?
Thanks to President Donald Trump's former personal attorney, that seems to be the question of the moment.
The quick skinny is this: Michael Cohen, Trump's lawyer, confidant and "fixer" for the last decade or so was, at least at times, was apparently recording telephone conversations with Trump. The buzz is that there are many, many recordings both with Trump and others. Why Cohen was recording, what the content of those recordings is and how they may affect the investigations into Trump and his associates is, as yet at least, known only to Cohen and his lawyers. The intrigue has made the tapes perhaps the most famous legal and political tapes since Rosemary Woods pushed "delete."
Trump, of course, has blasted Cohen. "What kind of lawyer would tape a client?" he tweeted. "So sad." In another tweet he said, "totally unheard of and perhaps illegal."
But is it?
Different states, different laws
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Each state is different. Each has its own laws about recording and a myriad of other things as well. To divide the states into very rough categories as regards recording, there are essentially two camps. Let's call these little campers the Two Consent States and the One Consent States.
New York — where Cohen lives and practiced — is a One Consenter. What this means — putting aside for the moment the ethical issues to which attorneys are bound (although we will circle back to this) — is that so long as at least one party to a conversation consents to its recording, it is legal.
Two Consent States require the consent of both parties to record a conversation and, if there are more than two parties, then the consent of one and all. California, Delaware, Florida, Illinois, Maryland, Massachusetts, New Hampshire, Pennsylvania and Washington are All Consent States. The majority of other states are One. Vermont has no specific law at all. Other states are "mixed" and exactly what "mixed" means varies broadly from one state to another. Suffice to say "mixed" is neither quite an apple or an orange and before one pushes "record," a little legal consultation may just be a good idea.
Colorful Colorado is a mixed state.
In Colorado, pursuant to C.R.S. §18-9-303 (1), under the ominous heading "Wiretapping Prohibited," an individual not involved in or present during a communication must have the consent of at least one party to record an electronic or oral communication. Violation of the statute can be a felony offense.
Depending in which state one finds oneself, the penalties for unlawful recording can vary rather widely.
One must also keep in mind the federal law relating to recording. Pursuant to 18 USC § 2511(2)(d), "It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortuous act in violation of the Constitution or laws of the United States or of any State." Translate this to one party consent although one would be wise to read the entire section and the comments and case law which have interpreted it.
And this means?
As the laws vary from one state to another — and as the Federal law has its own say-so — what if, say, I am sipping mai tais in Hawaii (a One Consent State) and I call you in California (oops, an All Consent State) and I, being smug in my One Consentness, turn on the recorder. What then? Generally (but I wouldn't go to the bank on this without first obtaining the advice of local counsel), where the record button is located will control. If I have kicked off my flip flops in Hawaii and the record button is beside me, then the California laws can take a hike. But, careful now, that isn't always so. Some jurisdictions have turned this general precept inside out and have held precisely the opposite; it is where the person being recorded without his or her consent is located that controls. Yikes.
Maybe the best thing to do when persons are in more than one state is to comply with the strictest law that may apply.
One more quickie before we get back to legal ethics; what constitutes consent? Again, this varies state to state. In some states, consent is obtained only upon an affirmative declaration that the party is giving his consent. In others, it is implied if the party is given notice and does not object. In One Consent states, well, only the recorder's own consent is required and, presumably, if he or she pushes record, then consent is given.
In every state and jurisdiction, there are exceptions to these laws: court orders, emergency actions, certain police actions and the ilk.
Now what about the ethics of a lawyer recording his client without the client's knowledge or consent? Let's just say that I wouldn't do it. There are a myriad of ethics rulings underscoring that an attorney must deal faithfully and honestly with a client and must deal fairly with the courts and other parties. To surreptitiously record would undermine this trust. The American Bar Association Model Rules — adopted by most states — make it clear the surreptitious recording by attorneys is verboten.
What the rules are in New York, Mr. Cohen will soon undoubtedly discover.
May one record without consent? Assuming one is a party to the conversation, in some states yes, in others no. In some states, sorta/kinda. What Cohen did in New York vis-a-vis Trump, Trump's suggestion to the contrary, appears to have broken no laws. That said, however, both Trump and Cohen may well face recrimination for what lies on the tapes; Cohen before the New York Bar for what may be his ethical lapses and Trump before an angry Congress and electorate.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.