Beware of the Smoking Gun….sometimes it can backfire
Every family law attorney is periodically confronted with a real-life scenario in which a clientâ€™s course of conduct could give rise to criminal liability. Invariably, these clients will seek out the attorneyâ€™s advice (sometimes in advance and sometimes not) and ask whether their behavior is legal. When they do, these clients generally want a black and white answer that resolves their dilemma one way or the other. Sometimes, this is an easy answer. For example if a client wants to commit battery, murder or cable-theft, most lawyers would (or should) just go ahead and advise that itâ€™s a bad idea. Â Unfortunately, most questions that arise are a little trickier.
One issue which seems to come up fairly frequently is whether a client can record another spouse, either during a telephone call or when they are speaking in person. It seems pretty logical to most clients (and anyone who used to be a fan of Mel Gibson) that the best way to prove your spouse is a jerk is to secretly tape their conversations.
Unfortunately, the Florida legislature takes a different view and in 2009 they passed the most recent version of Florida Statute Â§ 934.03 titled â€œInterception and Disclosure of Wire, Oral and Electronic Communications Prohibitedâ€. Generally, this law states that unless you have a court order, police permission or are otherwise authorized by some specific law to do so; you cannot record a conversation unless both parties agree. Doing so subjects you to criminal and civil liability which could include an award of both liquidated and punitive damages (even in the absence of actual harm to the recorded spouse). Furthermore, the tape will be inadmissible in court meaning that it wonâ€™t do you any good anyway (unless your Husband is Mel Gibson, of course).