Attorney-Client Conversations Are Confidential at Boyk Law
“If we continue to develop our technology without wisdom or prudence, our servant may prove to be our executioner.” -Omar Bradley, General of the United States Army.
We live in a society where the right to privacy have been burdened and consistently tested by social media and cell phones. Whether having a telephone conversation with your client or are walking down the street, one thing is prevalently clear: you cannot know for certain whether you are being recorded. Fortunately, there are laws in every state that can aid in protecting your privacy and that of your clients.
As of today, most states have adopted the “one-party consent” rule, however, some states still require all parties to a communication to consent to record or disclose. Ohio, being a one-party consent state, only requires that one party to a conversation consent to have a communication recorded or disclosed. This applies to both telephone conversations, in-person conversations, emails, or any other form of communication. However, just like with anything, there are restrictions to a person’s ability to record or disclose a seemingly private conversation. Pursuant to the Ohio Rev. Code, it is not unlawful for an individual who is a party to a communication, or has consent from a party to the communication, to record and/or disclose the content of said
communication unless the person is doing so for the purpose of committing a tortious or criminal act. For example, an individual cannot use the recording to blackmail or extort another person.
Another note of importance is interstate communications. What law controls if an Ohioan calls a Californian? If the individual in Ohio wants to record the call, can they do so without receiving consent from the person in California? It is generally presumed that the law where the recording device sits controls. The safest practice to avoid any ethical or legal consequences is to obtain consent from all parties if you are unsure. Another reason to be cautious is that interstate calls may subject you to federal liability, as well as state liability. Further, each state court’s interpretation may differ and have rules and regulations based on the factual circumstances. If you are not well-versed in all fifty (50) state’s case law and statutes, you may open yourself up to liability without knowing.
Penalties for violations of state and federal wiretapping and eavesdropping laws vary from misdemeanors to felonies, not including any repercussions from your state bar association. So, whether you, or your client, intends to record and disclose communications, make sure that you are following the laws of your state and the laws of the state where the recorded individual resides to ensure that you are protected.
