Can I Record My Attorney? U.S. v. Farrell, Fourth Circuit Court of Appeals, Decided April 5, 2019
In U.S. v. Farrell, the Fourth Circuit Court of Appeals upheld an attorney’s convictions for money laundering, obstruction of justice, and witness tampering, and the evidence against him consisted in part of recordings made by his clients.
Although I discussed Farrell’s charges and the evidence against him in another blog post, there are several questions that remain:
Can I record my attorney? Is that legal, and will the recordings be admissible in court against my attorney?
Can a defense lawyer effectively represent a person accused of drug trafficking without exposing themselves to criminal prosecution?
Is it Legal to Record My Attorney?
The first question is whether it is legal to record another person at all…
Federal and state wiretap laws prohibit the interception of communications, requiring consent to record in some circumstances. But state laws vary – when is it legal to record conversations under federal and state law?
Is it Legal to Record Conversations Under Federal Law?
Under federal wiretap laws, you must have consent to record someone else’s conversations – you cannot place a recording device on a telephone, computer, or in a room and capture another person’s communications.
Federal wiretap laws are one-party consent, however. Although you can’t record Bill and Mary’s conversation without consent, you can record your conversation with Mary without telling her. You can also record Bill and Mary’s conversation if Bill consents to the recording, even if Mary is unaware.
Is it Legal to Record Conversations Under SC Law?
State wiretap laws vary from state to state – to avoid committing a crime while recording a conversation, you must: 1) comply with the federal wiretap laws, and 2) comply with any additional requirements under your state’s wiretap laws.
SC, like the federal law, requires the consent of at least one party. So, can I record my attorney in SC? If you are a party to the conversation, the answer is yes.
Can My Attorney Record Me?
In most states, attorneys are governed by the state and federal wiretap laws just like everyone else.
In SC, however, our ethics rules prohibit an attorney from surreptitiously recording anyone without their consent if the recording is related to their work as an attorney – which means that, if you are in SC, your attorney cannot record you without your consent.
Can I Record My Attorney and Are the Recordings Admissible in Court?
If a defense lawyer’s client records their conversations, that does not automatically mean it will be admissible in court, although the Fourth Circuit Court of Appeals found that the recordings in Farrell’s case could be used against him.
Does the attorney-client privilege prevent the use of the recordings? Is it a violation of the Sixth Amendment right to counsel? Does an attorney have a right to privacy in his or her discussions with their clients?
In Farrell, the attorney was essentially accused of being the “consigliere” to a drug trafficking organization – advising them as to how to avoid detection and prosecution although never appearing as their counsel of record in the courtroom.
The most damning evidence admitted during Farrell’s trial was probably the recordings made by two of his clients – drug dealers who, while cooperating with the government, recorded conversations about illegal payments from drug trafficking proceeds and withholding information from law enforcement or the grand jury. The recordings included admissions by Farrell that the government said demonstrated knowledge of his own liability for participating in the criminal enterprise.
Farrell moved to exclude the recordings under the Sixth Amendment and the Fourth Amendment, although he dropped the Fourth Amendment claim on appeal. The Fourth Circuit found that the recordings were admissible – why?
There is no Attorney-Client Privilege if the Witness was Never Your Client
The Fourth Circuit found that the Sixth Amendment does not apply to the recordings because the witnesses were never Farrell’s clients:
The record does not show that, at the time of the undercover recordings, Harryman and Forman were Farrell’s clients or sought to become his clients. To the contrary, when the recordings were made, Harryman and Forman had both hired separate and independent lawyers to represent them — as Farrell was well aware. Therefore, no attorney-client relationship existed to support Farrell’s claim.
There were several situations described by the Fourth Circuit where Farrell made contact with the organization’s drug dealers, offered them advice calculated to secure their loyalty or prevent their testimony, provided them with funds, or paid their defense lawyers with funds that came from drug trafficking proceeds. Farrell never entered an appearance as counsel for the drug dealers, however, always remaining in the background.
The Client Owns the Attorney-Client Privilege, Not the Attorney
The Court further points out that, even if the witnesses were Farrell’s clients, the client owns the attorney-client privilege and not the lawyer:
Additionally, as the district court explained, “in the attorney[-]client privilege context, the privilege belong[s] to the client, not the lawyer.” See J.A. 203-04. Accordingly, Harryman and Forman were entitled to waive any such privilege, if one had existed at the time of their taped conversations with Farrell.
A client can waive the attorney-client privilege, expressly or through their conduct, at any time. The attorney can assert attorney-client privilege on behalf of their client, but not as a shield to protect themselves.
There is no Attorney-Client Privilege if You Are Helping a Client Commit a Crime
Even in cases where the witness is the client’s attorney, and the client does not waive attorney-client privilege, the “crime-fraud exception” to the attorney-client privilege may apply.
If the attorney is advising a client as to a continuing criminal enterprise or to assist a client in committing fraud, the attorney-client privilege can be breached, and the conversations will become admissible.
Inadvertent Waiver of Attorney-Client Privilege
A client can waive attorney-client privilege through their actions, even if that was not their intent.
Can I record my attorney? Depending on what state you are in, you probably can. But if that recording is released or discovered, the privacy of your conversations with your attorney may be at risk if the Court finds that you waived the privilege by making a recording that was later disseminated…
Can an Attorney represent a Drug Trafficking Client Without Putting Themselves at Risk?
The Fourth Circuit’s majority opinion seems to imply that suspected drug traffickers are not entitled to counsel unless it is certain they are no longer engaging in crimes:
…a lawyer providing advice to an unlawful drug trafficking entity such as the Nicka Organization places himself at great personal risk. Any lawyer providing advice concerning ongoing unlawful activity is circumscribed in the legal advice that can permissibly be provided, lest he become a participant in the unlawful activity. That is, a lawyer representing or advising such an entity can readily turn himself into a coconspirator — or aider and abettor — in the form of a consigliere or fixer. In all likelihood, the lawyer could with propriety advise the drug kingpin of the unlawful entity thusly: to immediately cease all unlawful drug trafficking activities.
The implication in this paragraph from the majority opinion is that, if an attorney represents a drug trafficker, the attorney is at risk of prosecution for money laundering and other crimes.
That is bull****. Every criminal defendant is entitled to effective representation, no matter the crimes they are accused of committing. Even if they are suspected of continuing to commit crimes. The concurring opinion points out the danger in the majority’s overbroad statement:
In my view, a lawyer representing a client charged with drug trafficking generally does not “place himself at great personal risk,” and is not “circumscribed in the legal advice that can permissibly be provided.” Ante at 35. The fair and proper administration of our criminal justice system depends on a defense attorney’s ability to effectively advise and represent his or her client without fear of criminal prosecution. Importantly, Farrell’s conviction 54 did not rely on his legal advice, but on his particular — and, in my view, egregious — conduct in furtherance of the money laundering conspiracy. And Farrell’s conduct in no way reflects the conduct of a criminal defense attorney engaging in zealous representation of his or her client, regardless of the specific legal advice given by that attorney.
An attorney does not place themselves at risk of prosecution for money laundering by zealously representing their client, regardless of the advice they give.
An attorney places themselves at risk of prosecution for money laundering when they commit money laundering – Farrell was convicted of laundering money. He was not convicted for giving competent advice to a client charged with money laundering.
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