Perhaps the better question is whether clients should record attorney-client conversations? In either case, doing so raises ethical and practical concerns that attorneys must carefully navigate. While this article offers practical insights into managing such situations, it is not legal advice. 

AI and Recordings: Convenience and Risk 

Recordings processed by AI tools, such as transcription or analysis software, introduce new convenience and may contribute to requests to record virtual meetings. However, these tools also present additional risks. Many AI systems store data in unsecured third-party databases, which could inadvertently expose sensitive information, facilitate voice and video spoofing, and potentially waive privilege. Until case law and security measures evolve, attorneys may counsel clients to avoid using such tools for attorney-client recordings.

Addressing the Client’s Request 

When a client requests to record a meeting, start by exploring their reasons. Clients might seek clarity on advice or process, or they may wish to share the recording with others. Once they’ve articulated the reasons for the request, counsel can identify solutions to accomplish the same goals.

Ensure Understanding of the Purpose of the Meeting

Explain that the purpose of the meeting is to gather information, discuss strategies, and provide guidance in a collaborative environment. This is an informal opportunity to brainstorm and share insights, not to offer conclusive advice or litigation strategy. Offer an alternative: follow up with a concise written summary of the discussion, including key points, recommendations, and timelines. This ensures greater accuracy and understanding, along with additional time to obtain additional research and refine advice.

Discuss Privilege Concerns 

If the client intends to share the recording with others, emphasize that doing so could waive attorney-client privilege. For situations where third-party involvement is necessary, collaborate with the client to prepare a limited, focused document summarizing relevant information.

Why Written Follow-Ups Are Superior 

A written summary offers advantages over recordings: 

– Clarity: It distills key points and avoids unnecessary details.

– Confidentiality: It could minimize risks associated with data breaches or inadvertent sharing.

– Convenience: It is easier to review a concise document than sift through lengthy recordings.

Encourage clients to take their own notes during meetings if they wish but remind them to appropriately label (“Attorney Client Privilege”) and store these notes securely, especially if saved digitally. This approach not only helps clients retain information but also protects attorney-client privilege and confidentiality.

A Note on Consent

Ohio is a one-party consent state, meaning any participant in a conversation may legally record it without notifying the other parties. As a result, even if an attorney discourages recording, a client could still proceed. Attorneys should be mindful of this possibility and consider how it might affect their communication strategies.

To avoid confusion or disputes, attorneys may include language in their engagement letters or representation agreements explicitly prohibiting clients from recording conversations. If a client violates this agreement, it could serve as grounds for terminating the attorney-client relationship.

When in Doubt, Seek Guidance 

Managing requests to record attorney-client conversations requires balancing client needs with ethical obligations and risk management. By fostering open communication and offering thoughtful alternatives, attorneys can maintain the integrity of their practice while addressing client concerns.

If you encounter a challenging situation or wish to incorporate specific language into your representation agreement, consider consulting ethics counsel. OBLIC policyholders can request one complimentary ethics consult with outside ethics counsel per policy period. Contact Loss Prevention to discuss.

As always, if you have any questions, please contact us here at OBLIC.

This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.