First of all, let’s talk about consultations. In a typical consultation, both lawyer and client are coming in fairly blind. Maybe I have a 30,000-foot understanding of what your case is about, but I probably don’t know the details. And maybe you know a bit about me from the internet or a prior encounter, but the odds are that we’re meeting for the first time.
During the initial consultation, you’re going to give me a download about your case, including the “bad facts,” and I’m going to give you my initial impressions on the case and how I would propose to handle your representation.
The discussion may be emotionally difficult, as you may be forced to recount painful or embarrassing events, and it may be frank, as I may be forced to tell you things you don’t want to hear, such as there not being a good case/defense for you. Most importantly, both of us may be wrong about some things: So of all the meetings you might even think about recording (not that you should record anything, see below), this ain’t the one, as even if you’re completely innocent and a total victim (but especially if you aren’t), you’re creating a record about a lot of stuff that you’d probably prefer never sees the light of day, which is exactly why advocate client privilege exists.
Next, when an advocate and client speak with each other about legal matters, those communications are generally considered confidential and privileged from discovery, i.e., protected from opponents and the broader world. This privilege does not belong to the advocate, but rather, belongs to the client, and the client can waive it.
Sometimes, waiver is knowing and voluntary, i.e., deciding to share what you discussed with your advocate with others, with full knowledge that you can never put the genie back into the bottle. But other times, waiver occurs because of people being sloppy, i.e., blabbing about their case with people outside the scope of the privilege or leaving confidential materials where others can easily view them, etc.
Depending on the circumstances, waiver of some privileged information can open the floodgates to much broader discovery of privileged materials. Thus, even though the privilege belongs to the client, not the lawyer, for the client’s own benefit, lawyers work hard to guard against waiver.
Recording a meeting—but especially a broad, less structured one like an initial consultation—creates a record of something that is supposed to be private, and failing to secure this record can then lead to waiver. Let’s say that you share the recording with a friend; congratulations, you’ve waived privilege on the recording and might be forced to share it with people (like the other side in your case) that you never intended to access it.
Again, that act might even waive privilege on other discussions with your lawyer. Or say you drop your recording device/memory card/tape/phone in a taxi; there’s a risk of waiver there, too. Finally, suppose that your nosy cousin gives the recording a listen because you left the player on your kitchen table. Again, there could be a waiver.
So no, there’s nothing sinister about a lawyer who is opposed to recordings. Call your lawyer, send him/her emails (on a secure, private, unshared account), and take notes if you need to, but don’t make verbatim recordings, because even if it’s unlikely, there’s a chance that:
- You’ll one day be forced to explain every word in the recording and
- Even a few snippets out of context could become very valuable to your opponent in litigation and very damaging to you.