I’ve often wondered whether conversations that I have with clients are being recorded… even if there are not signs warning against it. While I want to believe that they are NOT, as I think that would be a clear breach of confidentiality between clients & attorney’s, it would not surprise me. One of my favorite bloggers, Grits for Breakfast wrote on this topic in this article. And, Grits even quotes a nearby personality for central Texas, District Attorney for Williamson County, John Bradley, who said,
… jailed inmates have no expectation of privacy.
I agree with that statement for its general tenet, but definitely not in the perspective of when an attorney is talking with his or her client. Now, one could argue that if an attorney knows there is a chance a conversation is being recorded that he or she should control the conversation to compensate for that, but under some circumstances the information is needed and should be available based on the centuries old principle of attorney-client communication as discussed at length by the National Association of Criminal Defense Lawyers, here.
What I have done to avoid the risk is to speak with client’s in person and in the rare instance where I am on the telephone with them, the first thing I say after identifying myself is that I want them to be very cautious in what is said just in case someone is listening in.
Maybe what we all should do as a defense bar is to begin with open records requests to the jails of our respective counties to obtain their official "policies" on such matters… things like their "General Orders" may be available. The unfortunate side to all of this is that we can almost rest assured that the written policies will not contain language that this occurs….
Thanks to Robert Guest another Texas attorney blogger for bringing this to our attention.