Legal analysis
The FBI reportedly seized audio recordings during its raid of attorney Michael Cohen's property, including recordings of Cohen's conversations with another lawyer representing women who allegedly had affairs with President Donald Trump, according to CNN.
If Cohen, the president's longtime personal attorney, made it a practice of recording his conversations, he might have recorded conversations with clients, as well as with adversaries. If he recorded client conversations, then he could have recorded conversations with his client, Trump.
ABC News also reported that agents had seized recordings made by Cohen. NBC has not confirmed the reports.
As long as Cohen obtained advance permission from everyone involved, including the president, there is no real legal or ethical problem with recording phone calls or in-person conversations. If he did not obtain permission, it may still be legal in New York, so long as Cohen was a participant in the conversation.
In New York, a person is guilty of eavesdropping, a felony, when he or she unlawfully engages in wiretapping, "mechanical overhearing" of a conversation or intercepting an electronic communication.
Wiretapping is the use of a device to intentionally, and without consent, record a telephonic communication, by a person other than a participant. "Mechanical overhearing of a conversation" is slightly different: It is the intentional, nonconsensual recording of any conversation by a person not present at the conversation, by means of any device.
There's no evidence so far that Cohen violated New York's eavesdropping laws if he only possessed recordings of phone calls or conversations. First, New York is a "one-party" consent state: As long as one party to the conversation (in this case, Cohen) consents to the recording, the recording is lawful. Plus, there's no evidence that these recordings were of conversations to which Cohen was not himself a participant.
As long as he was a participant on the call or present for the conversation, New York's criminal eavesdropping statute does not apply to him. The state's criminal statutes primarily target situations where third parties, hidden in a van on a street, for instance, or having placed a bug on someone's phone or smoke detector, secretly listen in on conversations.
As a "one-party" jurisdiction, New York is in the majority of states: As long as one party consents to the recording of a conversation, the recording is not criminal. Only a dozen states require the consent of all parties to a conversation for it to be recorded, including Connecticut and Pennsylvania. If Cohen surreptitiously recorded his conversations in one of those "all-party" consent states, then he might have violated that state's law.
Surprising as it may seem, as long as all the participants are in New York, an lawyer who secretly records his own conversations or phone calls generally does not commit a crime.
However, even if not a crime, Cohen may have committed ethical violations as an attorney if he made recordings of his conversations without disclosing that he was doing so.
Historically, the Bar has expressed an aversion to secret tapings, which "offend the traditional high standards of fairness and candor that should characterize the practice of law." The New York Rules of Professional Conduct for attorneys generally prohibit "conduct involving dishonesty, fraud, deceit, or misrepresentation."
Over time, this prohibition has been relaxed somewhat. In 2003, a New York City Bar Association Ethics Committee Opinion concluded that a lawyer may secretly tape a conversation if the lawyer has a reasonable basis for believing that disclosing the fact of the taping would significantly impair some societal good. However, the opinion adds that undisclosed taping is ethically impermissible when used as a routine practice.
If Cohen made it a practice to secretly tape conversations, it's likely he violated ethical rules. The rules of professional responsibility appear to require a very good reason to justify the general prohibition against recording conversations without consent.
Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.
