Lawyers using AI note-takers carry recording risks that others don’t, according to Ernie Svenson in “The 80/20 Principle”. When a note-taker bot joins a Zoom call and starts transcribing, lawyers may break a wiretap law.
In most of the country, one person on a call can record it, known as one-party consent, which is also the federal rule under the Wiretap Act.
Some states require everyone’s consent, including California, Delaware, and Florida.
If calls cross state lines, it’s best to follow the strictest law in play.
California has held that its rule applies to any call to or from the state, even when the other person is in a one-party state.
Secret recording isn’t a rule that’s never enforced.
People have been convicted, such as a man in Pennsylvania who secretly recorded a custody conference with his ex-wife and was sentenced to jail.
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A woman in Massachusetts was charged with eight counts after secretly recording her husband, and a wife in Florida exposed herself to criminal and civil liability by installing spyware to capture her husband’s communications.
These cases show that the people most likely to be affected are those in the middle of a fight, such as a divorce or custody battle.
The bigger risk is civil, and it doesn’t need a prosecutor.
In California, a person can sue over an illegal recording and collect the greater of $5,000 per recording or three times their actual damages, without needing to prove harm.
This means that the person most likely to come after a lawyer is someone who already wants to hurt them, such as an ex-spouse or an opposing party, who can use an illegal recording as a claim that’s easy to prove.
For instance, one family dispute over secretly recorded calls ended in a six-figure statutory award plus more than a million dollars in punitive damages.
This is a significant concern for lawyers, as they may be more likely to be targeted by such claims due to their profession.
Lawyers must be aware of these risks and take steps to mitigate them.
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They can do this by hitting record on purpose, telling people they’re being recorded, and following the strictest state law when calls cross state lines.
The law was written for tape recorders and phone taps, but now the question is whether it applies to a bot that joins a call.
Class actions against Otter.ai and Fireflies.ai claim that the bots record everyone in a meeting without real consent.
The outcome of these cases matters because wiretap law assigns blame to the person who sets up the recording, not just the company that built the tool.
If the courts read it that way, the lawyer who lets a bot auto-join every meeting could be on the hook.
Consent is only part of the issue, as lawyers carry risks that others don’t, such as waiving privilege by sending a conversation to a third-party service for transcription.
Using AI note-takers thoughtfully is simple and worth building into habits.
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