Posted on
April 4, 2011 in
When a lawyer has possession of an illegally-obtained recording, what is she to do?
Not a new story; this is from 8 March 2011:
Just before Duke’s first unsupervised visit, Dianna bought a small digital recorder online. Dianna unstitched a bit of her daughter’s favorite teddy bear—known as “Little Bear”—and stuck the recorder inside, stitching the animal back up afterwards. The recorder never left the bear’s guts after this, except when the animal was washed. With no voice activation feature, the gadget simply recorded everything that happened in its presence, and Dianna periodically unstitched the bear just enough to insert a USB cable and download the audio recordings to her computer.
. . . . .All of this material was then turned over to Dianna’s lawyers, who submitted it to the state court and waited for a ruling on its legality. In the summer of 2008, the state judge decided that the recordings were not admissible as evidence in the custody trial, since they violated the Nebraska Telecommunications Consumer Privacy Protection Act and were therefore obtained illegally.
Then, in a federal civil lawsuit by the people whose oral communications had been illegally recorded, the clients got dinged for $60,000 each plus attorney’s fees for violating the Federal Wiretap Act, 18 USC Section 2511.
The court found that their lawyer had violated the Act by revealing the recordings to other lawyers in the case, but did not enter a judgment against him:
The court has carefully considered Mr. Bianco’s role in this matter and finds that damages should not be awarded against Mr. Bianco. Bianco did not solicit or advise the Divingnzzos to intercept the plaintiffs’ oral communications. While he disclosed the illegally-obtained materials to advance his client’s position in the Custody Case, the court did not consider the materials. The other recipients returned the materials unread or maintained the confidentiality of the communications.
The lawyer, who could easily have been ordered to pay $60,000 as well, got lucky in part because “the other recipients…maintained the confidentiality of the communications”—something entirely out of his control (and not, strictly speaking, a legal defense).
Moreover, both the lawyer and his clients got majorly lucky in another way: by not getting indicted. If the Divingnzzos or Bianco had popped up on the radar of the U.S. Attorney for the District of Nebraska, they could easily have been facing zero–to–five–year felony wiretap charges. The elements of a felony prosecution under Section 2511 are the same as the elements of a civil suit under Section 2520. It doesn’t appear from the summary-judgment order in the civil case that there was a lot of argument about the elements of the case, and “the other recipients maintained the confidentiality of the communications” is not a defense in a criminal prosecution.
So if you’re a lawyer and someone sends you a recording that your client made in violation of the Wiretap Act, what do you do?
As a preliminary matter, it is a violation of the Wiretap Act to disclose to any other person, or to use, the contents of any wire, oral, or electronic communication that you have reason to know was obtained in violation of Section 2511. In the Divingnzzos’ case, the trial court held that Bianco’s disclosure to the family court for a determination of admissibility was permissible as “consistent with” Section 2518(10)(a), which allows “any aggrieved person” to move for the suppression, in any court, of oral communications intercepted pursuant to the Wiretap Act. In a civil case in the District of Nebraska, at least, the lawyer receiving the recording may, under the Wiretap Act, disclose the recording to a judge for a determination of admissibility, but may not disclose it to others.
Assume that the lawyer, familiar with the Wiretap Act, knows that the recording was illegal, and that the tape is inadmissible. She doesn’t need a judge to rule on the admissibility of the evidence. Absent the client’s consent, may the lawyer ethically disclose the recording to anyone?
Let’s look at the Texas Disciplinary Rules. Assume that the lawyer is not a criminal-defense lawyer, so that the special rule of privilege (everything the criminal-defense lawyer learns in the course of representation is privileged) does not apply. Here‘s the operative rule, TDRPC 1.05, which defines when a lawyer can reveal confidential information.
The existence of the illegal recording may not be privileged information, but it is at least confidential information. Revealing it will be to the client’s disadvantage. So the lawyer can’t reveal it unless she is allowed to under 1.05(c) or (d) or required to under 1.05(e) or (f).
If the existence of the illegal recording had been revealed by the client, it would be privileged, even in a civil case, under Rule 503 of the Rules of Evidence. Let’s assume, though, that someone other than the client sent the recording—unprivileged confidential information may be revealed in broader circumstances than privileged information may.
From the rule, with my thoughts on its applicability to the lawyer’s situation in italics:
(c) A lawyer may reveal confidential information [including privileged information]:
(1) When the lawyer has been expressly authorized to do so in order to carry out the representation.
Revealing the existence of the recording will hurt the client; the lawyer should not ask for him to authorize it, nor to consent to its revelation.
(3) To the client, the client’s representatives, or the members, associates, and employees of the lawyer’s firm, except when otherwise instructed by the client.
While the lawyer may reveal the existence to others involved in the representation, this is just spreading the problem around.
(4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.
Without knowing about the recording, a court can’t order the lawyer to produce it. The Texas Disciplinary Rules don’t require it. Whether another law does may turn out to be a nice question.
(5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.
Nope. No controversy exists at this point between the lawyer and the client.
(6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer’s associates based upon conduct involving the client or the representation of the client.
Nope. No criminal charge, civil claim, or disciplinary complaint has been made.
(7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.
Nope. The client has already committed the criminal act.
(8) To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.
Nope. The client didn’t use the lawyer’s services to violate the Wiretap Act.
(d) A lawyer also may reveal unprivileged client information.
(1) When impliedly authorized to do so in order to carry out the representation.
Nope.
(2) When the lawyer has reason to believe it is necessary to do so in order to:
Nope. The representation presumably doesn’t include “getting the client indicted.”
(ii) defend the lawyer or the lawyer’s employees or associates against a claim of wrongful conduct;
Nope. No claim has been made.
(iii) respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
Nope. No such proceeding exists.
(iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client.
Nope.
(e) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer shall reveal confidential information to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act.
Nope. The criminal act is complete, unless someone decides to use the recording.
(f) A lawyer shall reveal confidential information when required to do so by Rule 3.03(a)(2) [to avoid assisting a criminal or fraudulent act], 3.03(b) [to correct an earlier offer of false material evidence], or by Rule 4.01(b) [to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client].
Not at first blush—unless the lawyer commits a criminal act by omission (in which case (c)(4) would also allow the lawyer ro reveal the recording).
So unless a law requires revealing the existence of the unlawful recording, the lawyer may not ethically do so. Does a law so require? Here we get into perilous territory. Recall the case of Connecticut criminal-defense lawyer Philip Russell, who in 2007 was indicted for tampering with potential evidence under 18 USC Section 1519, part of the Sarbanes-Oxley Act of 2002 (Sarbox):
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
Russell’s motion to dismiss was denied, but he wasn’t ultimately convicted of the evidence-tampering case; instead, he was convicted, pursuant to a plea agreement, of misprision of a felony under 18 USC Section 4—knowing of a felony and failing to report it. In the Fifth Circuit, at least, a misprision conviction requires proof of some positive act designed to conceal from authorities fact that felony has been committed, so the mere failure to call the feds would not itself lead to misprision liability.
Russell pleaded guilty to misprision because a 1519 charge is more serious. But the same conduct could violate both statutes.
Back to our illegal recording: “destroying it” by erasing it looks like a really bad idea. But what of “concealing” or “covering up”?
If the lawyer returns the recording to the client, or files it away, and the feds later learn that she did (because, for example, the client gets busted and tells them while trying for a 5K1), does she risk prosecution under the zero-to-twenty year Section 1519? Could a prosecutor see the failure to reveal the illegal recording as “concealing”? Could a grand jury? Could a petit jury? Could a circuit court of appeals?
The answer to all of those questions is “of course”: Section 1519 law is not well-developed, and a prosecutor could argue with a straight face that, by not revealing it, the lawyer concealed the recording and that the concealment was (as the Connecticut federal prosecutor pled in the Russell case) in relation to a federal investigation.
Just as a prosecutor could argue it, a lawyer could, if she were looking for cover to reveal her client’s misconduct, reasonably believe that the law requires disclosure, so that (c)(4) allows disclosure and (f) requires it and she is covered under the DRs—the law might eventually develop in a way that failing to reveal an illegal recording is itself illegal. But good lawyers don’t go looking for excuses to put their clients in federal jeopardy, and the possibility does not mean that the law requires disclosure.
Post-Sarbox, there is no guaranteed safe course for the lawyer who possesses a recording that her client made illegally, or anything else that might be evidence of a violation of federal law. If you reveal the existence of the recording to anyone, you are betting that the law requires you to do so; if you do not reveal the existence of the recording, you are betting that common sense will trump that depraved interpretation of 1591.
This post has assumed that the lawyer is not representing the client on a criminal matter; the decision is easier for the criminal-defense lawyer: we’ve got NACDL on our side, and ten thousand criminal-defense lawyers, many of whom would love to sink their teeth into this issue. Best of all, though, we have the Sixth Amendment: if the Government could, by statute, trump client confidentiality, the Sixth Amendment would be a nullity.
