The Danger of Recording Privileged Conversation, and the Preferred Alternative
If the recording is heard by anyone other than the client or their lawyer, both the confidentiality and the privilege has been breached.
Blame it on television. Many people think that a privileged conversation between themselves and a legal professional is a confidential conversation. These are two different concepts but recording the conversation has the same outcome.
Confidentiality is an ethics rule prohibiting lawyers from disclosing information related to their client’s representation. The attorney-client privilege allows lawyers to refuse to testify against their own clients. Both can be rendered useless if the conversation is recorded. If the recording is heard by anyone other than the client or their lawyer, both the confidentiality and the privilege have been breached.
Better than a recording
If it’s determined that there should be a record of a privileged or confidential conversation between a client and his or her attorney, a stenographer should handle it. As an agent to the attorney, they are prohibited from divulging what they record, and they cannot be commanded to testify what they have recorded in a court of law.
The decision to record this conversation means that the topic is important. Every word must be captured. Stenographic recordings can be superior in terms of accuracy. Here’s why. A stenographer will take down every word. A digital recording is only capturing sound. And there are no backups.
This means that the recording may pick up background noises that may make it impossible to make out every word that was said. All it takes is a rustling of papers or a car rumbling by in the background to make a recorded voice unintelligible. There’s also the possibility that more than one person might speak at the same time.
If there’s just a recording, that moment is lost. If a stenographer is capturing the conversation, he or she can stop the conversation and ask that it be repeated.
Back to what counts as privileged/confidential
Everything someone says to an attorney does not automatically qualify it as confidential and privileged. Only communications relating to the attorney representation are. If you consult an attorney for a divorce, everything pertaining to that is privileged and confidential. If during those conversations the client disclosed an unrelated crime, an attorney could be compelled to testify about it in court.
The privilege protects an attorney from being compelled to testify about communication with their client. That particular conversation is protected. It does not apply to facts known by others outside the conversation.
What’s more, it’s not possible to make something confidential and immune from being used in court by telling it to an attorney and then invoking attorney-client privilege.
Attorneys generally tell their clients not to assume that a conversation is protected. If it is, but it’s been recorded, the confidentially is breached if that recording is heard by anyone else. In some cases, the use of an online service to transfer, store, or send the recording can also breach the attorney-client privilege. For example, if you use your cell phone to record a conversation and it’s backed up to a cloud-based service, you may run the risk of having attorney-client privileges denied.
Contact us if you establish a true need to make a record of a conversation with a client. We can help you keep it confidential and privileged.