Category Archives: confidentiality

Recording Phone Calls

I often get asked whether it is legal to record phone calls and occasionally a client will come in with a great volume of recordings, expecting great results. There are some apps for smartphones that can automatically record calls. It’s usually a lousy idea.

  1. It’s illegal in the United States to record calls to which you are not a party (unless you are the NSA or law enforcement with a court order). That means if you are a parent and your child is having a telephone conversation with your co-parent and you are not in the room, it is a federal crime to record the call.
  2. It is legal in Missouri to record a call to which you are a party, provided the person on the other end of the call is also in a state where it is legal to record a call to which you are a party. If the person on the other end of the call is in a state in which it is illegal for either party to record a call, then it is potentially illegal to record the call without the other party’s consent.
  3. It is always legal to record a call with the consent of all parties to the call.
  4. It is unethical for attorneys to advise clients to secretly record calls, particularly to illegally record calls or to record calls to represented parties.
  5. It is unethical for attorneys to secretly record calls as that is a deceptive practice.
  6. Because it is deceptive for attorneys to secretly record calls, it is conceivable that a party who secretly records calls could have their credibility impeached at trial for engaging in the deceptive practice of secretly recording calls.

 

Client Confidentiality and Email

UncleSamListensIn
Jeff Schuler, CC BY 2.0

So, in the wake of the Edward Snowden disclosures about the NSA eavesdropping program, there has been an ongoing discussion among lawyers about how to protect the confidentiality of our client communications. This website is part of my response to that.

I changed web/email hosts and upgraded my email to include encryption between my computer and my mail server. So when I email clients (and anyone else) the transmissions are encrypted on “my side.” But they may or may not be encrypted on “your side.”

The three largest email providers, Gmail, Outlook and Yahoo!, default to SSL encryption by default, so about a billion of you are squared away. As for the rest, you should check with your service provider about encryption before you send me secret messages about your case!