Can you do that?

Proving things is the main focus of an attorney’s work. Understanding the law, finding it and applying it is crucial, but most cases live and die by the facts. Frequently, issues of proof revolve around what someone said, or failed to say. The trouble with this issue is people often differ on what was said, and you often end up in a “he said, she said” standoff. Having the key conversation on tape, resolves the issue quite nicely.

Because of this, people who know they are headed to court frequently want to get their conversations on tape. So, clients often ask whether taping a conversation is legal. For the attorney, this question, and the tapes generated by the client pose real threats. The legality of taping a conversation, both on the phone and in person, is an issue of state law. In all jurisdictions, taping a phone call that you are not a party to is illegal, but in some states, only one party (like you) need to consent to the taping of the call (and know about it). But in many states, everyone on the call must be informed of and consent to the taping. For the attorney, just knowing the law of your state is not sufficient, as the client may end up on the phone with someone out of state.

When the client brings a tape in to the attorney, this presents a threat as possession of the illegally taped conversation is also illegal, so these tapes are toxic. The issue most frequently comes up in domestic litigation, frequently on issues involving children. In most litigation, by the time the parties are working with attorneys and headed to court, they no longer associate with the opposition. In domestic litigation, the parties often must continue to have contact with the opposition regarding the children, even while they are in the heat of litigation. So the question comes up, can I tape the call? Can I tape calls between my child on my phone and the other parent?

Answering these questions is made a little easier thanks to this site, put up by the Reporters Committee for Freedom of the Press.

This entry was posted on Friday, October 22nd, 2004 at 9:58 am and is filed under Domestic Relations. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.