This article originally appeared in Goldberg Segalla’s Professional Liability Matters. Read the issue here.

In May 2018, a Philadelphia defense attorney sat for an interview for #FreeMeek, a documentary series on the rapper Robert Rihmeek Williams, better known as Meek Mill. Then, thinking the interview was over and his comments no longer were being recorded, the attorney made critical comments about the judge who had ordered the musician back to prison for violating his parole.

“That was hard to do,” the attorney said, apparently referring to the interview, “because defending the judge is now becoming—why doesn’t (the judge) just grant this f—— thing?”

But the attorney still was being recorded, and the judge he had criticized was his client. So, upon discovering his comments on the Internet, he sued an entertainment company involved in making the documentary to have the recording destroyed, citing federal and Pennsylvania wiretap laws that prohibit the intentional interception of any wire, oral, or electronic communication without the consent of all parties involved and disclosure of that communication.

The attorney’s lawsuit hit a roadblock this year when a judge dismissed his claims against the documentary makers. The statutory term “oral communication” requires a justifiable “expectation that such communication is not subject to interception,” and has
been interpreted narrowly, in Agnew v. Dupler, to include only communications where “the speaker possessed a reasonable expectation of privacy in the conversation.”

The court stated it was not enough for the attorney to prove he did not expect to be recorded; he must show that he exhibited an expectation of privacy and that the expectation was reasonable.

Too, the court found that the attorney may have had and exhibited an expectation of privacy given the interview was concluded, the camera was turned away, he attempted to remove his microphone, the content of the statements, his abrupt shift in tone, the dramatic difference from his on-camera remarks, and the sudden candor.

However, the court concluded this was not a reasonable expectation of privacy, given he never affirmatively sought to “go off the record”; did not wait until he had fully removed his microphone; did not ensure it was off before disparaging his client’; and spoke freely in front of a room full of strangers with recording equipment that had just been active.

Moreover, the attorney’s sophistication in press dealings made his expectation of privacy less reasonable given that:

• He knew he was disparaging his client to journalists working on a documentary series about a controversy in which public opinion was hostile to his client
• He signed a release
• He never confirmed he was off the record

The court also rejected the claim that defendants acted with the intent to commit the tort of false light invasion of privacy by selectively publishing true information “in a fashion which renders the publication susceptible to inferences casting one in a false light.”

Accordingly, the federal wiretap’s one-party consent rule was not subject to any exception based on intent to commit a tortious act and was properly subject to dismissal given defendants had consented to the recording.

Professional Liability Magazine, a collaborative effort of Goldberg Segalla’s Management and Professional Liability Practice Group, examines the latest best practices, emerging developments, and influential court decisions impacting the defense of professional service providers. Read our latest issue here.