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Headed to court? Have everyone ask lawyers if conversations are being recorded

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in Discrimination and Harassment,Employment Law,Human Resources

When it comes to winning lawsuits, it’s a cutthroat world out there. Attorneys representing employees may stoop to low tactics, such as secretly recording every conversation they have with witnesses. They hope to catch witnesses giving contradictory statements or to nail down the “facts” as early as possible, before the employer’s lawyers get a chance to talk to anyone.

What’s worse, it’s not against the Georgia state bar ethics rules to make secret recordings.

But lying about it is. That’s why you should instruct anyone who will be speaking with an employee’s attorney to ask point blank whether the conversation is being recorded.

Recent case: Charquita Price sued her former employer for sexual harassment and retaliation. Her attorney recorded several conversations with potential witnesses. The employer’s lawyers tried to have her attorney charged with unethical conduct, but the court refused. It reasoned that nothing in Georgia’s attorney ethics rules prevented the clandestine recording of conversations—just lying about the recording. Because the employer couldn’t prove the attorney actually misled the witnesses when he recorded the conversations, there was no unethical conduct. Price’s attorney will be able to use the recordings during the trial. (Price v. Gwinnett Family Dental Care, No. 1:06-CV-2659, ND GA, 2007)

Final note: Make sure everyone involved in a potential lawsuit understands they are under no obligation to talk to a lawyer for the other side. Don’t tell employees they can’t talk (that could be seen as intimidation or illegal interference with a protected right), but let them know it’s voluntary unless there’s a court order.

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