Law Firm Secretly Recording Client Conversations Is Wrong

A shady-looking man wearing headphones listens in on others' conversations. — (Image credit: Getty Images)

When you meet with your attorney and paralegal, the one thing that you can count on and don’t even give a second thought to is that your conversation will be confidential.

Indeed, the attorney-client privilege — confidentiality of attorney-client communications — is the bedrock of the legal profession.

Clients are able to disclose sensitive — often embarrassing information — without fear of it being revealed, which is vital to effective legal representation.

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(There are exceptions to the privilege. For example, when a client wants the lawyer's help in committing a crime or when disclosure is necessary to prevent imminent death or substantial bodily harm.)

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Smile, you're being recorded (but no one told you)

What if, from the moment you enter your lawyer’s office, audio and video recordings are being made — without your knowledge or permission — of everything you say to the paralegals and attorneys? How would you feel?

These are not just academic questions. A credible source (she’s asked to remain anonymous for fear of reprisal) has told me that a local public services law firm that is partially government-funded is doing exactly that.

Additionally, as you will see, the lawyer responsible has created an atmosphere of fear — employees are afraid they’ll lose their jobs if they become whistleblowers.

The phone call

“Mr. Beaver,” my caller “Peggy” said, “I work for a non-profit law firm that provides free, civil legal services to low-income and older individuals. Several months ago, ‘Ivan’ was hired as our new managing partner. Within days, a place that we all enjoyed coming to was giving us ulcers. An atmosphere of fear, suspicion and paranoia has become part of everyday life, and it began when he installed video/audio cameras just about everywhere.

“Even though we hardly ever needed to call the police because of an unruly client, Ivan sent a note to everyone stating, ‘For safety, all staff must conduct meetings with clients and applicants in designated intake rooms monitored by security cameras that facilitate our ability to protect everyone during in-person contacts.’

“The lawyers and paralegals all know that eavesdropping on or recording clients without posting signs informing them of the video and audio recordings — and obtaining their consent — violates the law. None of us has ever been in a situation like this in our many years of working as paralegals and attorneys.”

As Peggy related, several of the firms’ attorneys and senior paralegals objected, pointing out to Ivan that in California — a two-party state — all parties must agree to the recording/video, or Penal Code 632 is violated, and that can lead to criminal penalties, including fines of up to $2,500 and/or imprisonment for up to one year.

You want to keep your job? Then shut up

“Ivan sits at his desk,” Peggy went on, “and is glued to the computer screen, focused on monitoring client discussions with attorneys and paralegals. It is creepy.”

Then she read a threatening email Ivan sent “To Staff.”

I have seen this email. Paraphrased, Ivan wrote, While I’ve heard about privacy and cameras, those things aren’t important compared to the prospect of losing one’s employment, financial stability and ability to provide food and shelter for our families.

“This was a clear threat to keep quiet,” Peggy told me, “and we are worried. We do not know what he might do. What do you advise?”

Ethical obligations of the law firm's attorneys

I ran this troubling situation by an attorney with the State Bar of California’s Ethics Hotline. She said, “This conduct exposes the attorney to multiple counts of violating Penal Code Section 632, in addition to being sued civilly for invasion of privacy by anyone recorded without permission.”

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She also pointed out a number of apparent violations of state bar rules that could land Ivan in hot water, including threatening the employees’ jobs.

The Ethics Hotline attorney also pointed out something that the attorneys in this firm now must do — they must report what’s going on to the State Bar of California. (The firm has since been reported to law enforcement.)

California's 'snitch law'

While all other states have for years required reporting misconduct by fellow attorneys to the appropriate authorities, California passed into law this bit of common sense only a little over two years ago.

The “snitch law” says that attorneys must report, to the state bar or other relevant authorities, fellow attorneys who have engaged in misconduct that includes criminal acts, conduct involving dishonesty, fraud, deceit or reckless misrepresentation, misappropriation of funds or property and any other conduct raising substantial questions about the lawyer's honesty, trustworthiness or fitness to practice law.

This means that the attorney employees at this public service law firm have a duty to contact the State Bar of California and disclose what’s going on or themselves face discipline for failing to do so.

Clients want to trust their attorneys. In my decades of law practice, this is the first time I’ve ever heard anything like this. It is scary.

If falling into the wrong hands, these recordings could be the basis of extortion, tearing families apart, getting someone fired — the improper and illegal use of private, attorney/client communications threatens our very legal system.

Update: "Peggy" reported to me that "Ivan" sent an email to staff on Wednesday, the day after this article ran, that said that all cameras were being removed from the office that day. Peggy added, "Thank you very much for the assistance, your research and article!"

Dennis Beaver practices law in Bakersfield, Calif., and welcomes comments and questions from readers, which may be faxed to (661) 323-7993, or e-mailed to Lagombeaver1@gmail.com. And be sure to visit dennisbeaver.com.

Disclaimer

This article was written by and presents the views of our contributing adviser, not the Kiplinger editorial staff. You can check adviser records with the SEC or with FINRA.

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After attending Loyola University School of Law, H. Dennis Beaver joined California's Kern County District Attorney's Office, where he established a Consumer Fraud section. He is in the general practice of law and writes a syndicated newspaper column, You and the Law. Through his column, he offers readers in need of down-to-earth advice his help free of charge. "I know it sounds corny, but I just love to be able to use my education and experience to help, simply to help. When a reader contacts me, it is a gift."