When Do You Need Consent?
All lawyers, and even laypeople, know that the strength of any case depends in large part on how strong the evidence is. As Lorenzo (played by Denzel Washington) said in the movie Training Day, “It’s not what you know, it’s what you can prove!”
Often, legal disputes can stem from misunderstandings, confusion and/or outright lies. Therefore it’s not surprising that parties that expect to bring a lawsuit or that want protection from being sued, might try to record conversations to be used as evidence later. Since, people tend to be more cautious or might even refuse to talk if they know they’re being recorded, the prospective litigant might be tempted to record a conversation without letting the other party know. The question is: do you need the other party’s consent to record a conversation? As with so many legal questions, it depends.
Under Federal Law, 18 USC § 2511(2)(d), recording a conversation is allowed as long as you have the consent of one party in the conversation; presumably you consent if you are the person recording your own conversation, but a third party can also record the conversation of two other people, as long as one of the people being recorded gives consent.
However, whether you need the consent of only one party or all parties to a conversation differs from state to state. States like New York, New Jersey and Connecticut are one-party states, while states like California, Delaware and Maryland require that consent be obtained from all parties to a conversation before recording. Moreover, if the recorded conversation occurs by telephone between parties in states with differing rules on consent, the party that records the conversation could be exposed to liability, even if they’re recording from a one-party consent state. See Kearney v. Salomon Smith Barney, Inc., 137 P3d 914 (2006).
Lastly, even in a one-party consent jurisdiction like New York, there are exceptions. Recently, an attorney was publicly censured for secretly recording his own 2013 divorce proceeding on his iPhone. The attorney was cited for misconduct under 22 NYCRR 1200.0 § 8.4(d), engaging in conduct that was “prejudicial to the administration of justice.”
So when do you need the consent of the other party? If you’re in an all-party consent state, you always need it. If you’re in a one-party consent state, you’re probably safe if you record a conversation with another person that’s also in your state. Attorneys, however, should never record a legal proceeding, no matter how contentious or unfair things seem to be getting.