In today’s digital age, one should almost expect that all personal interactions and appearances in public places are being recorded. In fact, there are apps for cell phones that automatically record every single phone call. In some ways, it seems creepy. In others the question would be: if you are doing nothing wrong, what do you have to fear? Personally, I see it as creepy and I don’t like it.
However, Ohio is a “one party” state as it relates to recording interactions. As such, it is legal for one party to a conversation to record that conversation, even if the other party is not aware of the recording.
We have learned through our law practice that clients, opposing counsel and opposing parties frequently are making recordings of interactions, on the phone and in personal meetings.
From my perspective, if I know I am being recorded, I likely would be more cautious and more guarded in what I say. In some instances, I would limit my interactions with that person entirely, or make sure communications are all in writing.
As a result, we have added a provision to our client fee agreements requiring clients to tell us if they are recording interactions with our office. If they fail to notify us of those recordings, they cannot later use those recordings against us.
I recently shared the fact that this is part of our standard engagement letter with a class of Realtors, and was asked by 9 participants for that form language to include in their own agency agreements. So, I thought I would share that language here on this blog as well. Feel free to make use of it as it suits your practice.
Audio and Video Recordings with this Firm
We will never make an audio or video recording of any communication with you or any third party. We occasionally have clients who either want to make an audio and/or video recording of a call or meeting with us. In the event that you choose to make an audio or video recording or any interaction with us, we require that you disclose each such instance to us in advance in writing. If you fail to disclose any such recording, (a) it will be a material breach of this agreement, (b) it will be the basis for termination of the relationship by this firm and (c) you agree not to use that recording in any proceeding relating to our representation.
It’s a dangerous world out there. Proceed with caution.
