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Business Crimes BulletinFeaturesGovernmentLitigationWhite Collar Crime

Government Secret Recording of Interviews Rarely In Best Interests of Witness

By Joel Cohen
September 01, 2021

We've always recognized the odiousness of one party surreptitiously recording a conversation. Even though perfectly legal in some states, it may be unethical for an attorney to record. I have always told my professional responsibility students that if it got around that you had secretly recorded just one conversation, even if for good reason, you wouldn't be trusted by anyone to not have the "juke box" turned on when they spoke to you.

I must admit, as a prosecutor in the good old days when entrance security at government buildings wasn't very robust especially in detecting recording devices, we were constantly on guard lest the "bad guys" or their sometimes sleazy lawyers memorialize some silly remark by a prosecutor or agent that they could eventually use to undermine a prosecution.

So, what's this all about? I employ this platform to alert the local criminal bar to something worth considering. I have represented a former official in a corruption investigation underway in another federal jurisdiction. Requesting an interview of my client, the prosecutors and FBI tell me that my client is simply a witness. All good. Since, notwithstanding COVID-19, they probably could successfully subpoena him to a grand jury, out of good citizenship along with nothing to hide we agree to an interview to be conducted by Teams, Zoom, Webex. Whatever.

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