Wiretap Act Charges Against Lawyers a ‘Wake-Up Call’?

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Pennsylvania Attorney General Kathleen Kane’s charging of two attorneys over alleged violations of the Wiretap Act on Monday could be a wake-up call for attorneys in an era when recording conversations has never been easier.

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Ethics attorney Michael B. Hayes of Montgomery McCracken Walker& Rhoads said it is increasingly important for attorneys to make an inquiry and to get information about where certain pieces of evidence came from.

Hayes said that, while legality and admissibility of evidence is weighed on a case-by-case and jurisdiction-by-jurisdiction basis, attorneys cannot direct their clients to do things they are not legally or ethically able to do.

“As folks’ ability to generate evidence in this way becomes easier and easier, you’ve got to be careful that your client is not working to obtain evidence for you that would violate your rules of professional responsibility,” Hayes said. In the digital age, “the danger is a little bit enhanced with the client who wants to help their lawyer make their case.”

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According to Hayes, the state Supreme Court’s April 2014 decision in Commonwealth v. Spence could bear on the cases of Benyo and Booker. In Spence, the justices ruled that telephones are expressly exempt from the devices prohibited the Wiretap Act regardless of how they are used.

“It exempted phones, no matter what kind of phone it is, from the definition of electronic devices under the act,” Hayes said. He noted that the cases against Booker and Benyo could be distinguishable because in Spence a police officer used a phone to eavesdrop rather than record a conversation. “But the decision itself sweeps pretty broadly.”

The courts are continuing to grapple with the implications of that decision, Hayes noted.

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“I think the law is struggling to keep pace with changes in technology and the advances in electronic communications,” Hayes said.

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