Are You Taping This?
Repinted courtesy of the author - Stewart Ransom Miller

In February 1971, the United States Secret Service, at the request of then President Richard M. Nixon, installed listening devices in the White House. They placed seven microphones in the Oval Office, five in the President’s desk, and one on each side of the fireplace. They placed two in the Cabinet Room under the table near the President’s chair. All were wired to recorders in the White House basement. The recordings became smoking guns. The rest is history. Recorded conversations soon achieved a special place in our history.
Fast-forward to your need today to prove what someone said to a client in a telephone conversation. Such needs often arise in family law and consumer rights cases. Simply put - It only happened if you can prove it happened.
One way to prove something happened is to record a telephone conversation with the callers being the parties to the event. However, you must be aware that recording telephone conversations is conduct regulated by Federal and state law.
For example, Federal law allows recording of telephone calls with the consent of at least one party to the call. This means that if an individual places, receives, or joins a call, that individual may record the telephone call (without giving any warning or notice) and may later make use of the recording (including court room use).
Thirty-eight states and the District of Columbia permit an individual to record such telephone conversations. These laws are called “one-party consent” statutes. The following states have “one-party consent” statutes:
Alabama
Alaska
Arizona
Arkansas
Colorado
District Of Columbia
Georgia
Hawaii
Idaho
Indiana
Iowa
Kansas
Kentucky Louisiana
Maine
Michigan
Minnesota
Mississippi
Missouri
Nebraska
New Jersey
New Mexico
New York
North Carolina
North Dakota
Oklahoma
Oregon
Ohio
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
West Virginia
Wisconsin
Wyoming
On the other hand, twelve states require the consent of all parties to record [before recording] a telephone conversation. These laws are called “two-party consent” statutes. The following states have “one [two]-party consent” statutes*:
California
Connecticut
Delaware
Florida Illinois
Massachusetts
Maryland
Montana New Hampshire
Pennsylvania
Washington
It’s no surprise, however, that it is illegal in all states to record a telephone conversation to which you are not a party. Moreover, Federal law and that of most states make it illegal to disclose the contents of an illegally intercepted telephone conversation.
Although their clients are permitted to record telephone calls, Texas lawyers are not permitted to do so. See Ethics Opinion 392, Tex, B.J., July 1978, page 580. Nonetheless, they are allowed to “advise a client to electronically record a telephone conversation to which the client is a party, without first informing all other parties involved.” See Ethics Opinion 514, February 1996. Furthermore, Texas lawyers are required to provide clients with both an accurate statement of these laws, and an honest opinion of the consequences likely to result from such a particular course of conduct. See Comment 7 to DR 1.02.
Tell the clients that judges and juries like “smoking guns.”

*Nevada should also be included in this latter category.