Is It a Good Idea to Tape Record Another Individual?

President Donald Trump, as all the world now knows, was secretly recorded Jan. 2 by someone on Trump’s call with Georgia’s Secretary of State Brad Raffensperger (R), who was accompanied by Ryan Germany, a lawyer representing Georgia’s secretary of state office. The president was accompanied, apparently, perhaps in different locations, by lawyer Cleta Mitchell and Chief of Staff Mark Meadows.

This article is not about the propriety of what the president was seeking to accomplish in making the call, or the politics of the efforts of the participants on both sides. That’s a subject for another day, and for other commentators. Rather, this is about the propriety—and, indeed, legality—of Raffensperger taping or authorizing the call’s taping, and what it might mean for others who might be inclined, for whatever reason, to secretly tape another individual or individuals, over the phone or in person.

First, as far as we can tell, given that Raffensperger was in Georgia when the call was taped, his conduct was perfectly legal. Georgia is a state, like, for example, New York, that requires the “consent” of only one party on the call to the taping (whether he is the caller or the recipient).

Since Raffensperger recorded it, even if Germany didn’t know that it was being recorded, the recording was perfectly legal. If Raffersperger, however, had been located at the time of the call in Pennsylvania, for example, where both parties must consent to the recording for it to be legal, Raffensperger would have committed a crime under Pennsylvania law.

For someone intending to record a conversation with another person for whatever reason, even a really good reason, they must ascertain for certain the law of the state where they’re recording the call, or an in-person encounter with the person being recorded. It’s easy to find out.

Lawyers Could Suffer Disciplinary Consequences

And while lawyers, acting as lawyers, may legally record adversaries, witnesses, or even their own clients (without notifying them of the recording), they may suffer disciplinary consequences depending on the jurisdiction where the recording occurs and the circumstances. For example: Is it a criminal case? Has the lawyer or his client been threatened? Is it a continuing practice of recording in which the lawyer is engaged?

These are all issues the lawyer must consider before going down the road of taping a conversation, however well-motivated the attorney might be in wanting to memorialize the interaction with the other individual. Also, relatively simple to find out. We don’t know, if the taping idea originated with Germany, or he even knew about it.

Still, and assuming the law of the state and the ethics of a lawyer, or perhaps a professional of another discipline recording a conversation (such as a psychiatrist treating a patient who wants to protect herself from a potential claim), don’t present a bar to the recording, is there another important consequence?

Ethical Questions Arise

When I’ve taught legal ethics in the past and the issue of recording has arisen, I’ve always admonished my students, perhaps in an avuncular manner, that “as soon as it becomes known that you have recorded a conversation with an unsuspecting individual, the world will be on guard about you. Anyone who picks up the phone to answer your call will wonder how free they might be in saying what’s really on their mind—when the guy on the other end may end up being the whole world.”

This is not a judgment in any way about Raffensperger or what he decided to do or allow. Rather, it’s a statement about reality and its potential consequences. It may very well be that he had an extremely good reason to be concerned that he was being leaned on by a political figure, and was concerned that, indeed, the most powerful man in the world was an intimidating presence.

But once he decided to go public with his recording, anyone with any sense would know what he had been willing to do—at least once before. And if you, for example, were to now call the secretary of state of Georgia for any reason whatsoever, but particularly for a sensitive matter, wouldn’t that be on your mind? And might it not it influence what you might have to say to him, and how you would choose to say it? Think about it.

Lest it go unsaid, particularly nowadays, individuals in the business world, perhaps paranoid about business situations, may want either to protect themselves or “lock in” individuals on the other side of a negotiation or business dispute.

Here, too, a rule of reason should be at play for the individual tempted to turn on the microphone, when literally everyone has a “microphone” so readily at their disposal. A short-term gain may prove the undercarriage of a long-term loss.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Joel Cohen is senior counsel at Stroock & Stroock & Lavan LLP. Previously, he served as a prosecutor at the New York State Special Prosecutor’s Office and at the Department of Justice’s Organized Crime & Racketeering Section. He is an adjunct professor of law at both Fordham and Cardozo law schools.