A fundamental risk management pointer is to properly document your file. As a result, many professionals are great note-takers; they follow-up conversations in writing, confirm strategy and clearly document instructions. These are all risk aversion tools to protect the professional, to hold others to oral commitments, and provide clarity in future disputes. But, professionals cannot take this too far. There is a difference between jotting notes or confirming conversations on the one hand, and secretly recording or transcribing conversations on the other. Such secret recordings may run afoul of state privacy laws and lead to potential civil and criminal liability.
In Dillon v. Seattle Deposition Reporters, LLC, the Washington Court of Appeals considered a claim involving criminal liability against a law firm that surreptitiously transcribed a phone conversation with an adversary for use in litigation. Prior to engaging counsel, the plaintiff arranged to speak with his adversary’s attorney to discuss the underlying lawsuit. In anticipation of the call, the law firm hired a court reporter. When the plaintiff called in, the attorney informed him that the plaintiff would be placed on speaker phone and that there was an “assistant” “who’s writing stuff down.” The court reporter proceeded to transcribe the entire conversation using stenographic equipment. The attorneys subsequently filed a motion to dismiss on their client’s behalf which was supported, in part, by the recorded statements of the plaintiff.
When the plaintiff learned of the secret transcription he filed a separate suit against the attorneys and the court reporting company, alleging violations of the state privacy act. In response, the law firm and the reporting company alleged that their actions were protected by the State anti-SLAPP statutes. Anti-SLAPP statutes have been adopted in more than thirty states, and are intended to provide an expedited procedure for escaping from lawsuits filed to inhibit valid speech or petition rights. Generally, these laws are intended to prevent the filing of harassing lawsuits against someone who is engaged in protected activity, such as free speech or the right to engage in the legal process.
On appeal, the appellate court reversed the trial court and held that the anti-SLAPP statute did not apply to the defendants’ conduct. The court noted that the anti-SLAPP statute covers statements made within a judicial proceeding, but determined that the law did not apply merely because recordings were later filed in a judicial proceeding. The court further determined that the defendants could not take advantage of the anti-SLAPP statute because the gravamen of the claim was the defendant’s transcribing the telephone call and not their subsequent submission of the transcripts in court. Thus, the defendants remain on the hook for this potentially improper recording.
Attorneys and other professionals are in dangerous waters then they record a conversation, whether digitally or by other means. Professionals must be familiar with the applicable privacy laws, which dictate notice requirements prior to recording a conversation. When in doubt, professionals should be sure that all parties are aware of who is listening to the conversation and whether it is being recorded. Failure to provide notice could lead to civil and criminal penalties.