In general terms, if you are on a phone call to someone else, you may record that call. Except in special circumstances (e.g. if you are a member of a profession with a specific ethical code that requires disclosure, or if specific contractual provisions apply), you are not required to disclose the fact that you are recording.
Do not expect government agencies, or professionals, to be happy about the fact that you are recording. It will increase their suspicion of you. It may be held against you if they are assessing your attitude. (That can be a good reason not to tell them. However, if they specifically ask whether you are recording, do not lie. Instead, tell them you are recording, show them this blog, and invite them to make their own recording as well.)
Reputable, competent and informed professionals will not object if you disclose that you are recording.
I have learnt from the experiences of some of my clients. I now recommend to many clients that they routinely record interviews and phone conversations with professionals and agencies, such as social workers, teachers, medical staff, and anyone else where an issue may arise about what was said. The System can be too ready to believe other members of The System.
A client may subsequently need to prove that they were indeed given particular advice that proved to be unwise (and that is subsequently denied by the advice giver or their employer). Or that they did not say something. Or that they did. Or that the social worker (or other professional) did or did not say something.
Recording interviews and phone calls can also enable the lawyer to provide better advice to the client. The client does not always accurately remember (or relate) the conversation. If a crucial call or meeting was recorded, the client and/or lawyer can listen to the recording and, if necessary, gently correct any misunderstanding, before the misunderstanding creates a new problem. A client who is humble enough to accept that they may perhaps have been mistaken, and who agrees to check this before escalating a conflict, should be applauded.
It is reasonable for a lawyer to insist on listening to the recording herself before quoting or using it on a client’s behalf. This expense is insignificant compared to the cost of unnecessarily prolonged proceedings. The lawyer may also identify reasons why using the recording in evidence could backfire, even if the client believes it helps their case.
Just knowing that the recordings are there if needed can help boost a client’s confidence in dealing with agencies. There should be no need to retrieve the recording – unless a dispute arises about what happened.
However, if a client records phone calls or interviews, the existence of such recordings may subsequently have to be disclosed to the court and to other parties, if the recordings are relevant to legal proceedings. The content of the recordings may also have to be disclosed, unless there is a basis to claim confidentiality or privilege. It is also illegal to destroy recordings (or other documents) that may be relevant to legal proceedings. Wise clients keep this in mind and ensure nothing is said in a recorded call that may reflect adversely on the client. In many situations it is wise not to volunteer the fact that such recordings exist, especially if there will be no routine procedural ‘discovery’ requirement.
Covert recording may backfire if a party is trying to ‘set up’ or ‘entrap’ another party by asking leading questions or trying to manipulate a conversation.
Even if no such entrapment occurs, covert recording may also be interpreted as breaching a relationship of trust and confidence. Do not covertly record a conversation with your spouse!
Consider how the other person will react if they learn you have been recording and you have not disclosed it at the time. Knowing you have a legal right to do something does not always prevent negative consequences if someone objects. Use discretion and judgment.
Finally, making the recording is one thing. Disclosing its contents to a third party is a different matter. Legal privilege allows anything to be disclosed in confidence to a lawyer for the purposes of obtaining legal advice. Disclosure to anyone else who was not a party to the recorded conversation may breach privacy laws or incur liability for defamation or breach of confidence, or even criminal liability in some instances. Caution is advised.
I repeat – this article broadly reflects New Zealand law. Elsewhere the law may be different. Even within New Zealand, the general information in this article may not fit your own specific circumstances. Exceptions exist that have not been mentioned here. This article should not be relied on as legal advice.
Cheryl Simes