As family law attorneys, we are regularly asked by clients if they can record their spouse. In fact, in some cases, they are asking if we want a copy of the recording that they have already made. Yes, these recordings can possibly prove something was said or not said; there is the ability to corroborate as well. But admissibility of recordings is complex and a wholly separate area of law. Today, we discuss whether certain recordings are even legal and, depending on the answer to that question, whether your attorney can even listen to or view the recording.
Attorneys are bound by rules of ethics. Two ethics opinions directly control whether your attorney can even access any recordings taken by clients. The first is regarding recordings made by the client. Before we begin, federal law generally prohibits the interception of any wire, oral, or electronic communication without consent (see Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §2510 et seq.). For example, in an alienation of affection case, if a client illegally records their spouse and the paramour during a phone call, then the client will have violated federal law. (North Carolina has similar laws found at NCGS § 15A-287.) An attorney could not ethically listen to the recording for potential use at trial because it would amount to a benefit stemming from illegal conduct—an impermissible result.
The second opinion is regarding a situation where it is not the client that records the conversation, but a third party. Whether or not the attorney can listen to the recording or use it at trial depends on an interpretation of the law. If the recording was illegal and violates the federal law under 18 U.S.C. §2511(1)(d) and (2)(d), then the attorney may not listen to or use it, just like in the first scenario.
However, the opinion further states that if it is questionable whether the recording is illegal, the attorney can petition the court to make a determination. The main distinction between this scenario and the above, is that the above was clearly illegal and made by the client, for the client. The second scenario is based on a recording made by another person, and it was unclear if the recording was illegal.
Consult Your Attorney
In either scenario, there still lies the issue of admissibility, and rules of evidence are complex and could further prevent even legally recorded conversations from entry as evidence. We advise that you consult your attorney before making any such recordings. There are situations that make recording perfectly legal here in North Carolina, and your attorney can give you precise instructions as to how and when.
This blog was originally published on November 1, 2021.