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61 Vill. L. Rev. Online 1 (2016)

handle is hein.journals/vlrtoleg61 and id is 1 raw text is: VILLANOVA LAW REVIEW ONLINE: TOLLE LEGE CITE:61VILL L REV TOLLELEGEl WIRETAP ACT PROSECUTIONS OF DEFENSE ATTORNEYS: THE SERIOUS LEGAL AND ETHICAL CONCERNS ARISING FROM THE USE OF RECORDED CONVERSATIONS AS EVIDENCE THOMAS G. WILKINSON, JR.* & JOSHUA N. RUBY** I. INTRODUCTION Two criminal defense lawyers in Western Pennsylvania are facing criminal charges under the Pennsylvania Wiretapping and Electronic Surveillance Control Act (Pennsylvania Wiretap Act) for disclosing to a court the contents of telephone conversations allegedly recorded in violation of the Act. The Pennsylvania Wiretap Act criminalizes certain interceptions and use of recorded conversations. 1 These prosecutions raise difficult questions for lawyers confronted with potentially exculpatory evidence in the form of recorded conversations, particularly in the face of the rapidly advancing technology of handheld devices that can both communicate and record. On the other side of the country, a software developer appeals his federal wiretapping convictions, arguing that his convictions can only stand if a jury finds that he knew his software code, which is designed to record telephone calls, was being used illegally. And state and federal courts nationwide continue to interpret the scope of wiretapping statutes, many of which have not been updated or amended in decades. Taken together, these cases raise difficult and unsettled questions about criminal liability under the federal and state wiretapping statutes, especially for lawyers confronted with potentially exculpatory evidence in the form of recorded conversations. These same cases-and, in particular, the criminal charges filed in Pennsylvania-also highlight the stiff penalties that can be imposed on lawyers who answer those questions incorrectly in the eyes of law enforcement. II. THE PENNSYLVANIA PROSECUTIONS On July 27, 2015, the Pennsylvania Office of the Attorney General (OAG) announced that charges had been filed against Gerald V. Benyo Jr. and Stanley * Thomas G. Wilkinson, Jr. is a Member of Cozen O'Connor in Philadelphia, where he practices in the Commercial Litigation Department (twilkinson@cozen.com). He is a past President of the Pennsylvania Bar Association and past chair of its Civil Litigation Section and Legal Ethics and Professional Responsibility Committee. He received his law degree from the Villanova University School of Law, where he was a managing editor of the Villanova Law Review. ** Joshua N. Ruby is an Associate at Cozen O'Connor, where he practices in the Commercial Litigation Department (jruby@cozen.com). He received his law degree from Harvard Law School, where he was active on the Harvard International Law Journal and the Harvard Human Rights Journal. 1. See 18 PA. CONS. STAT. § 5703 (2015). Pennsylvania and ten other states require two-party consent to legally record a conversation in at least some circumstances. See id. § 5704. VILLANOVA LAW REVIEW ONLINE- TOLLEv LEGE.F CITEv 61 guIL L. Rvg. TOLLEv LEGEF I

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