Personally, I do think Means, if he were worth his salt, SHOULD have explicitly verified each time he visited that the recording be turned off since these are such unusual circumstances for attorney-client consultations. He claims that he verified the first day, but not on subsequent days since these visits occurred on consecutive days, but certainly under these unusual circumstances, procedures may change from day to day, so the attorney should extend the effort to make sure the conversations remain confidential.
That way, unintentional mistakes - which are more likely to happen under unusual circumstances than in usual circumstances - would not be made and he'd have a better position from which to argue that the recording was intentional and was misused.