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Hold the phone

Say you’re a domestic relations lawyer in Fairfax and you have a client who needs a divorce. She lives in Herndon and her husband has moved out, finding a place across the Potomac in Rockville, Md.

You need certain information and you figure you’ll have her call him and tape it. After all, that’s okay here in the commonwealth, right? We have a one-party-consent wiretap statute. (i.e., if one party consents, it’s legal).

Hold the phone (literally). Our Boston-based sister paper, Massachusetts Lawyers Weekly, is reporting a case that should give you pause. Check out the story, which we’ve posted on our site.

In the case, a guy from Virginia Beach calls some employees in Massachusetts and allegedly tapes the conversations, unknown to them. The tapes come to light during discovery. The employees file suit, claiming a violation of the Massachusetts wiretap law, which requires two-party consent.

Not to worry, says the guy’s lawyer. Two well-respected federal cases from the Bay State address the issue and go our way. But the guy may be up the dirty creek without the proverbial paddle after the Superior Court judge gets done. He ignores the federal cases and says that under the Restatement of Conflicts, the employees’ claim for violating the statute goes forward.

Back to our hypo. Most states have laws like ours, allowing the taping with one-party consent. Twelve states require all parties to consent and Maryland is one of them.

The Reporters Committee for Freedom of the Press, a journalists’ group, conveniently has surveyed all 50 states and provides a run-down.

The opinion is from a trial-level judge, so it is persuasive, not precedential. But still, as they used to say on “Hill Street Blues,” let’s be careful out there.

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