Recording a session in Michigan.

The statute Michigan Compiled Laws 750.539c

Section 750.539c makes it an offence to eavesdrop upon a private conversation without the consent of all parties. The argument is about the word eavesdrop. In Sullivan v. Gray the Michigan Court of Appeals held that a participant in a conversation cannot eavesdrop on it, which would make Michigan a one party state in practice, and federal courts applying Michigan law have since read the statute the other way. No Michigan Supreme Court decision has settled it. A practitioner is not the person who should be testing which reading wins.

Where a statute is argued both ways, the cost of the conservative reading is one sentence and the cost of the other reading is a defence. Ask. It also removes the question of which state the client was sitting in, which for a video session is a thing you will often not know.

Michigan has no comprehensive consumer privacy statute. What it has is a breach notification act covering personal identifying information, which a session recording tied to a named client is, and which obliges notice to the person and in larger breaches to the Attorney General. The absence of a privacy act is not an absence of duty: a Michigan client suing over a recording will plead the common law privacy torts Michigan still recognises.