Earlier this week, all news channels in the United States were preoccupied with one thing: the released private conversation that took place between the then-presidential candidate Donald Trump and his former attorney Michael Cohen.
On the audio tape, which was secretly recorded by Cohen in September 2016, Trump and Cohen can be heard discussing how they would buy the rights to a Playboy model Karen McDougal’s story about an alleged extramarital affair with Trump about a decade ago.
Trump blasts the audio recording, calls it ‘illegal’
The audio tape was released by CNN after it was seized as part of an FBI raid on Cohen’s home and office earlier this year. After hearing the news that the media was planning to release the tape, Trump was outraged and tweeted out, “Inconceivable that a lawyer would tape a client — totally unheard of and perhaps illegal.”
But was it really illegal? Is it a crime or legal malpractice for a lawyer to secretly record his or her client? This is the question we asked our San Diego legal malpractice attorney from the Law Office of Edward J. Babbitt, APC.
In short, it depends on the state. As bizarre as it may sound, it was actually legal for Michael Cohen to secretly record Donald Trump without his consent or knowledge because the conversation took place in New York City and was therefore in compliance with New York law.
Is it illegal to record your client without his/her consent?
“While California law requires you to have a two-party consent when recording someone else, New York law is a little bit different in that regard,” says our experienced legal malpractice attorney in San Diego.
Under New York law, as long as one of the parties to the conversation knows that the conversation is being recorded and consents to it, secret recordings are legal even if that one party is the person recording the conversation. So Cohen wiretapping Trump is not illegal for three reasons:
- the conversation took place in New York;
- New York is a one-party consent state; and
- Cohen knew that their private conversation was being recorded, even though Trump did not.
While it is not illegal for lawyers to wiretap their clients in New York, there is a question of ethics here. In fact, it is not uncommon for attorneys in one-party consent states to wiretap their clients.
Secretly recording someone else is unlawful in California
When the conversation is recorded in a two-party consent state, such as California, and one of the parties never consent to having the conversation recorded, wiretapping your client without his/her consent would be unlawful in California.
However, in no way does it mean that New York law allows to record all types of conversations without any consent whatsoever. Under New York law, it is a crime to record or eavesdrop on a private in-person or telephone conversation unless at least one party to the conversation is aware of the recording. Therefore, if you are not a party to the conversation, you are prohibited from recording that conversation.
“It is important to distinguish the difference between private and semi-public conversations, as recording someone without their knowledge in a public or semi-public place (such as a bus station, street, bar, etc.), where the conversation can be overheard by other parties, is not illegal even in two-party consent states such as California,” explains our San Diego legal malpractice attorney.
Did Michael Cohen break the law by wiretapping Donald Trump?
Breaking California’s wiretapping law is a serious crime that can not only subject you to criminal prosecution, but also put you at risk of facing a civil lawsuit for damages from the person(s) who did not consent to having the private conversation recorded. Cohen, meanwhile, is off the hook for wiretapping Donald Trump and cannot be sued by the U.S. President for recording their conversation without his knowledge or consent.
It is always advised to consult with skilled lawyers about your particular case in order to determine whether the audio or video recording without your consent and knowledge is legal or illegal. Contact the Law Office of Edward J. Babbitt, APC, for a free case evaluation. Call at 619.543.1789 or fill out this contact form today.