“Inconceivable that the government would break into a lawyer’s office (early in the morning) – almost unheard of,” Trump wrote on Twitter. “Even more inconceivable that a lawyer would tape a client – totally unheard of & perhaps illegal. The good news is that your favorite President did nothing wrong!”

One of many tweets from our president over the weekend has raised the eyebrows of defense lawyers across the country. Although it’s unfortunate that we must ask, “Is it true?” in response to public announcements from the president of the United States… is it true?

First, did the government break into his lawyer’s office? That’s old news, but, my understanding is that they entered the president’s lawyer’s office with a valid search warrant based on probable cause, and there was no “breaking in.”

Next, is it inconceivable or unheard of for a lawyer to surreptitiously record their client? Apparently, the president’s former lawyer, Michael Cohen, had at least 12 recordings that were seized during the raid on his office, at least one of which was a recording of a conversation with the president.

It’s not inconceivable, but I haven’t come across any cases in South Carolina where it happened. Furthermore, I agree with the president’s sentiment – although I’m sure Cohen had his reasons, the thought of an attorney secretly recording their client feels like a problem to me.

But, was it illegal? And, if it was legal, was it ethical per the ethics rules that govern attorneys? What if it had happened in South Carolina?

Is it Legal for an Attorney to Record Their Client?

Whether it is against the law for an attorney to secretly record conversations with their clients depends on where it happens – some states, including South Carolina and New York, are “one-party” states that allow anyone to record a conversation if they are a party to that conversation.

Other states, like California, are “two-party” states, that require consent from all participants before a conversation can be recorded.

It is never legal for a “third party” to record someone else’s conversations – that would violate state and federal wiretap laws unless it is done by law enforcement with pre-approval by a court based on probable cause.

Can Attorneys Legally Record Their Clients In South Carolina?

It’s not illegal, although it may be unethical.

SC Code Section 17-30-20 makes it a crime to intercept or attempt to intercept any wire, oral, or electronic communication, and it is punishable by up to five years in prison.

SC Code Section 17-30-30, however, exempts recordings (intercepts) where one of the parties consents to the recording (the one doing the recording can be the one that is consenting).

So, in South Carolina, it is legal for any person to secretly record a conversation – if they are a party to that conversation or at least one party to the conversation has given their permission.

This also means that it is not illegal for an attorney to secretly their client, although it is a violation of the ethics rules.

Is it Legal for Attorneys to Secretly Record Clients In New York?

New York, where Cohen’s recording was reportedly made, is also a one-party consent state, making it legal to record a conversation (even attorneys recording their clients) if at least one person gives their permission.

Looking at the NY statutes, it is clear that, if Michael Cohen recorded his client, the president, it was legal.

What About Federal Law?

Federal wiretap laws are similar to SC and NY wiretap laws, making it a crime to intercept communications but not if at least one party consents to the recording:

It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.

So, Cohen’s secret recordings of his conversations with the president are not illegal under NY law or federal law. Whether the recording was ethical is another matter.

Is it Ethical for an Attorney to Record Their Client?

Whether it is ethical for an attorney to secretly record their client also depends on the state where the recording happened.

What Do New York’s Ethics Rules Say?

Attorney Oscar Michelen in New York says that the NY ethics rules are murky, and there is no agreement about when an attorney can surreptitiously record a client. He points out that:

• There is an old NY ethics opinion that says it is unethical for a lawyer to record anyone without consent (including a client);
• The New York City Bar Association has taken the position that it is unethical for attorneys to record without consent;
• The County Bar Association has taken the position that it is not unethical because it is legal in New York; and
• The American Bar Association says it is not unethical because it is not forbidden by the Model ABA Rules.

Based on this, it may have been reasonable for the president to complain that Cohen’s actions were unethical, but not illegal.

If a grievance is filed against Cohen in NY based on the secret recording, maybe that question could be resolved once and for all?

What Do South Carolina’s Ethics Rules Say About Secret Recordings?

South Carolina’s Supreme Court has repeatedly held that surreptitious recording by an attorney violates Rule 8.4(d), which prohibits an attorney from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation.”

Although the SC Supreme Court has kicked it around a bit over the years, it’s clear that, in most if not all cases, it would be a violation of the ethics rules for an attorney to secretly record their client.

In re Anonymous Member of the South Carolina Bar, 283 S.C. 369, 322 S.E.2d 667 (1984) (“Anonymous I”)

In this opinion, the SC Supreme Court held that an attorney is guilty of misconduct “where a recording is made of a conversation with an adversary or a potential adversary without the knowledge and consent of all parties to the conversation.”

In re Warner, 286 S.C. 459, 335 S.E.2d 90 (1985)

The following year, an attorney was disciplined for surreptitiously recording a judge in chambers – the Supreme Court held in this case that it was misconduct for an attorney to record a judge and went on to say that “it is equally reprehensible and impermissible for an attorney to secretly record another attorney or, indeed, another person.”

Most attorneys in SC have relied on this opinion for the proposition that it is unethical for an attorney to secretly record any person without their consent.

Anonymous Member of South Carolina Bar, Matter of, 404 S.E.2d 513, 304 S.C. 342 (S.C., 1991)

In 1991, the SC Supreme Court again held that “an attorney shall not record a conversation or any portion of a conversation of any person whether by tape or other electronic device, without the prior knowledge and consent of all parties to the conversation,” in this case pointing out that it’s not okay even if the attorney is just recording as “an alternative to taking notes.”

The rule “shall be applied irrespective of the purpose(s) for which such recordings were made, the intent of the parties to the conversation, whether anything of a confidential nature was discussed, and whether any party gained an unfair advantage from the recordings.”

In re Attorney General’s Petition, 308 S.C.114, 417 S.E.2d 536 (1992).

A year later, the SC Supreme Court created exceptions to the rule because the Attorney General’s Office asked them to, holding that “it is not unethical for an attorney to surreptitiously record any conversation when that recording is made with the prior consent of, or at the request of, an appropriate law enforcement agency in the course of a legitimate criminal investigation,” including:

• Where an attorney who is receiving anonymous telephone threats wishes to record these calls;
• Where an attorney wishes to record anonymous information received over the phone;
• Where a government attorney wears a “wire” to surreptitiously record individual(s) attempting to bribe the attorney; and
• Where an attorney, himself the subject of a criminal investigation, wishes to cooperate with law enforcement authorities in part by secretly recording conversations with other individuals.

Ethics Advisory Opinion 08-13

Last, but not least, in 2008 the SC Bar issued an advisory opinion that, while acknowledging the Supreme Court has the final say, says it is not a violation of the ethics rules for an attorney to make secret recordings if they are acting in their personal capacity – when:

• The lawyer is not acting as a lawyer, as a public official, or in any other position of trust; and
• Such recording is not otherwise prohibited by law.

What About Confidentiality?

Even if it is legal and ethical for an attorney to record their clients, as it appears to be in New York, it is still clearly unethical for an attorney to reveal privileged information about a client. In the case of the president and Cohen, that is no longer an issue because the president has waived confidentiality as to the recording.

Charleston, SC Criminal Defense Lawyer

Grant B. Smaldone is a criminal defense attorney in Charleston, SC. If you have been accused of a crime or are under investigation in South Carolina, call now at (843) 808-2100 or email us to speak with a defense lawyer today.