Recording Law for Family Law in New Mexico

New Mexico’s wiretap law (NMSA 1978, Section 30-12-1, "Interference with communications; exception") makes it a misdemeanor to intercept communications "by telegraph or telephone" without consent, but in-person conversations are NOT covered by Section 30-12-1 at all. In State v. Hogervorst, 1977-NMCA-057, 90 N.M. 580, 566 P.2d 828 (Ct. App. 1977), the NM Court of Appeals held that the statute’s prohibition applies only to telephone conversations or telegraph messages; because the recording at issue was a face-to-face conversation transmitted by a device concealed on one participant, the court concluded such overhearing is not made criminal by Section 30-12-1. Practical effect: for the wearable-device use case (in-person disputes, interactions, police encounters), in practice this is even more permissive than one-party consent, since no consent at all is required — in-person audio capture falls entirely outside the statute's scope.

New Mexico is a one-party consent state, but only for telephone/telegraph communications. The statute explicitly allows interception by a person acting under color of law in the investigation of a crime where such person is a party to the communication, or where one of the parties to the communication has given prior consent to such interception, monitoring or recording (NMSA 1978, Section 30-12-1). In-person (face-to-face) conversations are NOT covered by Section 30-12-1 at all. The statute reaches only telegraph/telephone communications. For those, New Mexico is one-party consent: interception under color of law in a crime investigation where the officer is a party, or where any one party to the communication has given prior consent, is exempted from the misdemeanor offense, so a participant may record their own phone call without the other side's knowledge.

Not restricted by NMSA Section 30-12-1. The statute's prohibited acts (tapping/displacing equipment, or reading, interrupting, taking or copying any message, communication or report without consent) are expressly limited to communications transmitted "by telegraph or telephone." It contains no reference to oral communications, images, or video, and under Hogervorst does not reach in-person interactions at all — so silent video-only recording of a real-world encounter is not addressed or restricted by this statute. (A narrow, unrelated exception exists under NM's voyeurism statute, NMSA 1978 Section 30-9-20, which criminalizes photographing/filming a person's intimate areas without consent where they have a reasonable expectation of privacy — e.g., a restroom or changing room — but that is not implicated by recording disputes/interactions/police encounters.)

New Mexico has no statutory law-enforcement-specific exception needed for citizens recording on-duty police in public, because Section 30-12-1 does not reach in-person audio/video capture at all (Hogervorst). Separately, and more directly on point for the police-encounter use case, the U.S. Court of Appeals for the Tenth Circuit — the federal circuit that includes New Mexico (along with Colorado, Kansas, Oklahoma, Utah, and Wyoming) — held in Irizarry v. Yehia, 38 F.4th 1282 (10th Cir. 2022) (No. 21-1247, decided July 11, 2022) that there is a clearly established First Amendment right to record police officers performing their official duties in public, and that the individual officer defendant was not entitled to qualified immunity because that right was already clearly established (citing six sister circuits' prior recognition of the right). This gives strong federal constitutional protection, on top of the absence of state wiretap-law exposure, for recording on-duty police in New Mexico.

New Mexico has squarely addressed this question post-01-422, and its Ethics Advisory Committee expressly declined to follow the ABA's more permissive approach. In Formal Opinion 2005-03, a lawyer asked the Committee, in light of ABA Formal Opinion 01-422, whether they could secretly record a witness interview who had indicated the conversation was "off the record." The Committee's answer was no, under the facts of the inquiry, and it stated that its two earlier opinions (1988-6 and 1996-2, both grounded in the old ABA Formal Opinion 337 per-se rule) would not be withdrawn: the withdrawal of the older ABA Formal Opinion does not impact this Committee's analysis of the instant request, nor is this Committee presently inclined to withdraw either Formal Opinion 1988-6 or 1996-2. The Committee's core holding rejects the central premise that legality plus absence of an independent ethics violation is enough: the inquiry cannot be based solely on what is legal. It does not necessarily follow from the fact that secret recording of conversations is lawful that the making of secret recordings by or at the direction of an attorney is ethical. Instead, under Rule 16-804(C) (barring conduct involving dishonesty, fraud, deceit or misrepresentation), the Committee holds that the misconduct referenced includes both acts of commission and omission, so a lawyer who knows a witness believes an interview is "off the record" violates the rule by recording it anyway without disclosure — the lawyer is obligated to tell the witness prior to initiating a recorded interview that the interview will be recorded. Rule 16-804(A) further bars using an agent or employee to do the recording in the lawyer's stead. The opinion adds a closing admonition applicable beyond the specific facts: despite the withdrawal of ABA Formal Opinion 337, the Committee believes that the prudent New Mexico lawyer will still be hesitant to record conversations without the other party's knowledge. That said, the Committee stops short of declaring an absolute per-se rule for every undisclosed recording: it explicitly states it does not mean to opine that under no circumstances would the practice be permissible. Rather, the analysis remains a very fact-specific one — turning on factors like whether the recording would make the lawyer a witness, whether the lawyer made false statements to induce the conversation, whether the other party is represented, and whether the lawyer knows the other party believes the exchange is off the record. So New Mexico's rule is best described as a rejection of 01-422's permissive default in favor of a presumptively-disfavored, case-specific standard, closer to old ABA Opinion 337 than to 01-422 — not a categorical "never" rule, but a real, freestanding ethics constraint that exists independent of whether the recording is legal under New Mexico's one-party-consent wiretap statute. Notably, the Committee explicitly frames it this way: legality under the recording-consent statute is necessary but not sufficient for the conduct to be ethical.

New Mexico’s wiretap law only covers phone calls; in-person conversations aren’t covered at all. In practice, this means you can record a phone call with only your consent, but you can also record in-person disputes, custody exchanges, or police encounters without anyone’s consent under state wiretap law. Video-only recording is unrestricted everywhere except where New Mexico’s voyeurism statute applies (e.g., restrooms or changing rooms). Federal law adds extra protection: the Tenth Circuit has ruled that there is a clearly established First Amendment right to record on-duty police officers performing their official duties in public, so officers cannot claim qualified immunity if they try to stop you. Just remember: if you’re a lawyer, you may need to tell the other person you’re recording, even if the law allows it.