Topic A in today’s media is the recording made by attorney Michael Cohen, weeks before Election Day, of then Presidential candidate Donald Trump. The recording, played last night on CNN, was a discussion of suppressing a Playboy model’s story about an alleged affair Trump had with her years earlier. The question on many viewers’ minds, apart from the lurid substance of the allegation, was whether it was legal for Cohen to record the conversation without Trump’s knowledge. The answer to the question is “yes,” but only because the conversation was recorded in New York.
 
Unlike many other states which have adopted specific laws against the practice, in New York it is lawful for one party to a conversation (by telephone or in-person) to record that conversation without the knowledge of the other party. The theory behind the New York law is that “you,” the recorder of the conversation, are “consenting” to the recording of your own conversation, notwithstanding that the other party is unaware that you are doing so. In contrast, the recording of any conversation to which either party has not consented, i.e. a third party recording the conversation of two others, is a felony under New York law. Section 250 of the New York Penal Law delineates the crime of “Eavesdropping” where a person engages in “recording of a conversation or discussion, without the consent of at least one party thereto….”
 
Of course, Michael Cohen was not just any person; he was Donald Trump’s attorney. His conduct in secretly recording his client raises issues regarding the zealous representation and candor owed to his client. An additional ethical issue is posed by Cohen’s release of the recording in an obvious effort to harm his former client. In sum, the secret recording of President Trump by his attorney may subject Cohen to professional discipline in the form of censure, suspension, or disbarment, but it will not, in and of itself, subject him to criminal prosecution in the State of New York.

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