Eustis, FL asked in Criminal Law for Florida

Q: Once attorney-client privilege has been waived, can the conversation be recorded without consent in Florida?

I have good reason to suspect that something "shady" is going on with my attorney. If I bring my "non-essential third-party" fiance' to a meeting with my attorney, thus waiving attorney-client privelege, can that conversation be secretly recorded without violating the "two-party consent rule" in Florida?

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1 Lawyer Answer
Michael Fayard
Michael Fayard
PREMIUM
Answered
  • Criminal Law Lawyer
  • Sarasota, FL
  • Licensed in Florida

A: Florida is a "two-party-consent" state, and it is a felony to record an oral conversation with someone during an in-person communication if they have a reasonable expectation of privacy. Meaning, if you recorded the lawyer in his/her office or somewhere they think is private, without permission, then you have potentially committed a crime. Not only have you potentially committed a felony, but you can also be liable for damages from civil liability.

The fact that you bring your fiancé and waive attorney-client privilege does not somehow alleviate the reasonable expectation of privacy or grant you permission to record. In other words, waiver of the privilege is not the equivalent of consent to record. But there are exceptions to the criminal aspect depending on whether the person recorded had a reasonable expectation of privacy (e.g. you are sitting in a crowded, public place and record the conversation). If there is no reasonable expectation of privacy, then you can potentially beat a charge on the recording.

The more important part here is that you do not trust your lawyer's advice or counsel. I strongly recommend against recording the lawyer. Your best move here is to find a different lawyer to handle your case.

Terrence James O'Sullivan agrees with this answer

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