One of warnings we often have to give clients coming in for criminal consultations becomes not to talk to people about their case. There is a natural tendency to want to speak with friends, family and neighbors either to explain what happened or simply to try and disprove that anything criminal happened. Unfortunately, these statements can be used against you, and even a statement which is a complete denial but has any kind of detail can end up painting you into a logistical corner that you may not have intended.
As lawyers, the general rule is that anything you tell us is confidential. In March of this year, however, the Supreme Court of Florida ruled in the matter of McWatters v. State, 35 FLW S 169. This decision from the holds that if a lawyer has a phone conversation with a client and either of you knew or should have known the call was being recorded, then the conversation is not privileged. The theory behind this case that when an otherwise privileged communication is made in front of a third party, that the privilege goes away. For instance, you can't confess out loud to a murder on a crowded bus and claim that you were only talking to the priest next to you when you said it.
This case really stands as a reminder that sometimes the most damning evidence are the words that an accused person says. In this day and age, it's always better to assume that someone is listening.
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