Michael Cohen, President Trump’s former attorney, created a firestorm when he recently stated he had recorded Trump when the two discussed potential payments to buy the rights to former Playboy model, Karen McDougal’s claim of an alleged affair with Trump years earlier. (President Trump not only denies the affair, he also denies he and Cohen were discussing a cash payment to McDougal).  In a tweet (predictably), Trump blasted Cohen, asking “What kind of a lawyer would tape a client?” Trump also claimed via tweet that the tape mysteriously stops right before he said “positive things”.

According to court filings, federal prosecutors have a dozen recordings from Cohen, who has done an about-face after first professing his steadfast support for President Trump. Cohen is now facing criminal prosecution for his personal financial transactions, including a payment allegedly made to Stormy Daniels on behalf of President Trump. While Cohen initially stated he would “take a bullet” for the President, he now says his “family and country” come before his loyalty to Trump. Cohen has also reportedly told friends that he does not believe Trump would pardon him if it came to that.  Rudy Giuliani, President Trump’s new attorney, confirmed the existence of the tape recording.

What are the Laws Regarding an Attorney Taping a Client?

The Cohen-Trump issue has led many to ask whether it is legal—or ethical—for an attorney to record a conversation with a client without the client’s knowledge. Although Trump tweeted that Cohen’s recording was illegal, that is not actually true. Since the taping was done while both Cohen and Trump were in the State of New York—a one-party state—the recording was not done illegally. One-party states allow any person who is part of a conversation to record the conversation with no notice to the other party. All states prohibit third parties from listening in to and recording a conversation without the knowledge of the other parties. This practice is known as eavesdropping. So, Cohen apparently did nothing illegal when he recorded his conversation with Trump, however whether the recording was ethical is a completely separate issue.

There remains a large swath of opinions regarding an attorney recording any conversation without notice to the other party. An old opinion from the New York State Bar Association calls recording a client without his or her knowledge definitely unethical, however the New York State Bar Association more recently stated that it is “almost always unethical,” particularly if it is a “routine practice.” The New York County Bar Association took the opposite stance, stating that since it is legal in the state of New York to record another person without their knowledge, it is legal—and therefore ethical—for an attorney to do so. The American Bar Association claims that recording a client’s conversation without their knowledge is “not forbidden.” As you can see, the waters are pretty murky regarding whether an attorney can—or should—record a client without their knowledge.

While Trump could have potentially blocked the release of the tape by claiming it was privileged communication between he and Cohen, his attorneys waived that privilege under the belief that the recording actually “vindicates” Trump, therefore there is no privilege attached. Whether this waiver was a blanket waiver, or only for this one specific recording remains to be seen. It may be that President Trump will not be allowed to pick and choose which parts of a specific conversation he is willing to waive privilege on, although he might be legally able to choose which distinct conversations he will waive privilege for. In the end, look at it this way—clients come to attorneys because they have a serious legal issue. It is almost always a stressful time for a client who must hire an attorney, therefore all lawyers should think very seriously about whether recording a client without his or her knowledge is something they want to be known for. Lawyers are essentially in the business of “secrets,” and few people would want those secrets exposed through a recording.

State Stances on Recording Conversations

Eleven states currently require the consent of everyone involved in a conversation or phone call prior to recording the conversation. Those states include: California, Connecticut, Washington, Pennsylvania, Florida, New Hampshire, Illinois, Nevada, Maryland, Montana and Massachusetts. In 2014, the two-party consent statute of Illinois was held unconstitutional, and while Hawaii is a one-party state, both parties must consent if the recording device is in a “private place”. The state of Massachusetts has an outright ban on “secret” recordings rather than requiring consent from all parties, which could be a little murky legally. While the laws in these states are known as “two-party” consent laws, they actually require that all those who are party to a conversation must give their consent prior to any recording being made.

The majority of states—including Alabama—only require one-party consent, generally the person making the recording if that person is a part of the conversation. Alabama has criminal penalties in place for those who record a conversation without the consent of at least one of those involved in the conversation. The same Alabama statute also bans secret “observations” while trespassing on private property.  Unlawful eavesdropping is a misdemeanor in Alabama carries a maximum penalty of one year in jail, although installing an eavesdropping device on private property is a felony, with a sentence of one to ten years in prison.

Wiretapping vs. Eavesdropping

Eavesdropping is overhearing, recording, amplifying or transmitting any part of a private communication without the consent of at least one of the persons involved in the conversation. Wiretapping, on the other hand, involves using covert behaviors to intercept, monitor and record telephone conversations of others. There may also be some confusion as to the meaning of “consent.” If all parties to a conversation are clearly told that the conversation is being recorded, and they talk anyway, their consent is implied. If attorneys feel the need to record their clients’ conversations, they should probably tell the clients that the conversation is being recorded to avoid any hint of unethical behavior.