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Can My Lawyer Record Our Conversations?

July 29, 2018

Question: Attorney Haroutunian, I have enjoyed working with you as my lawyer over the past few years. But after the President’s latest episode, is it legal for you to record our conversations?

Answer: First, know this: I have never, and will never, record a conversation with a client. I consider it an extreme betrayal of trust.

Second, recording a conversation without the consent of all parties, is illegal in Massachusetts. General Laws Chapter 272, Section 99 imposes criminal fines up to $10,000.00 and/or imprisonment up to 5 years. Massachusetts has one of the toughest laws against secret recordings, in the country.

In 2016, a Mount Holyoke college student recorded a professor’s lecture, without the professor’s knowledge. When the professor’s controversial opinions about the 2016 presidential election were released online -- they went viral. Lost in the controversy, was the technically illegal act, performed by the student. The college later developed policies about classroom recordings.

New York, on the other hand, does allow people to secretly record conversations. Lawyers, also, may benefit from differing opinions by bar associations in New York. A 2001 American Bar Association rule change allows for lawyers to secretly record conversations with non-clients, but must fess up, if asked about it. The association was not definitively for or against recording client conversations. Thus, ethical review comes on a case by case basis.

Finally, let me repeat: I have never, and will never, record a conversation with a client. Now, if I can just get my kids to stop shaming me, by recording my singing at home.

Attorney James Haroutunian practices real-estate law, estate planning and probate at 630 Boston Road, Billerica. He gladly invites questions at james@hlawoffice.com or by phone at 978-671-0711. His website blog is found at www.hlawoffice.com . This column is published for informational purposes only and not to be relied on as legal advice, in any manner.

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