Play Invasion of Privacy Games, "Win" Invasion of Privacy Lawsuits

Bloomberg Law is reporting that Vrdolyak Law Group, based in Illinois, has been sued in the U.S. District Court for the Northern District of Illinois for secretly recording employee phone calls and and meetings without permission, and then concealing their efforts.

Now, Illinois has some pretty stringent eavesdropping laws and is a two-party consent state, which means that absent particular circumstances, all parties to a conversation need to consent to recording it. So the particular course of action may not be available to aggrieved employees in other states, but hearing about this suit got me wondering—is it ethical to surveil your employees in such fashion?

Of course, lawyers are not allowed to commit crimes that reflect adversely on their character or fitness to practice law, but absent a specific criminal violation, there may be other problems—lawyers can’t lie about what they’re doing (whether in the course of representing clients or otherwise). There is also going to be information relating to representation discussed on these calls, which attorneys must reasonably protect from unauthorized disclosure. ABA Comment 5 to Rule 1.6 allows disclosure between members of the same firm (as impliedly authorized to facilitate representation), but sometimes, clients don’t want their matter discussed with everyone in the firm (and surely not with any third-party vendor involved in the surveillance). Clients’ wishes for privacy will trump the general rule.

I’ve previously written about surveillance in a remote work context; the situations I cited seem to have arisen with the employees’ consent, but present problems for other reasons. Some of those same reasons apply to clandestine surveillance as well, and I will add…it’s creepy. Presumably you hire people because you believe they are hardworking and trustworthy. So trust them. We’re perhaps toward the end of the Great Resignation, but workers are still mobile. You may be able to see them on camera, but don’t be surprised if it’s the camera trained on the exit.