May a lawyer secretly record conversations?

You represent the plaintiff in a personal injury matter. During the course of your investigation of the events leading up to the injury, you anticipate that you will have to interview several witnesses. For accuracy's sake, you would like to record these interviews but because you do not believe these witnesses would be as forthcoming with you if they knew they were being recorded, you do not want to tell them they are being recorded.

May you secretly record the conversation?

In 2001, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 01-422 [PDF] Electronic Recordings by Lawyers Without the Knowledge of All Participants, the headnote of which states:

A lawyer who electronically records a conversation without the knowledge of the other party or parties to the conversation does not necessarily violate the Model Rules. Formal Opinion 337 (1974) accordingly is withdrawn. A lawyer may not, however, record conversations in violation of the law in a jurisdiction that forbids such conduct without the consent of all parties, nor falsely represent that a conversation is not being recorded. The Committee is divided as to whether a lawyer may record a client-lawyer conversation without the knowledge of the client, but agrees that it is inadvisable to do so.

Opinion 01-422 withdrew an earlier ABA Formal Opinion 337 [PDF] (1974) which had stated that with the exception of lawyers involved in law enforcement activities, it was unethical for lawyers to secretly record conversations without the consent of all participants.

When Formal Opinion 337 was issued in 1974, the ABA Model Code of Professional Responsibility was official ABA policy. The opinion based its reasoning on two provisions of the Model Code – the appearance of impropriety standard that was a part of Canon 9, and DR 1-102(A)(4) that stated that "A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation." (For a brief history of the development of ABA ethics standards, See the Preface to the 2007 edition of the ABA Model Rules of Professional Conduct). The appearance of impropriety standard was not carried forward into the Model Rules of Professional Conduct when they were adopted in 1983, but the substance of DR 1-202(A)(4) was carried forward to Rule 8.4(c).

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In Opinion 01-422, the Committee considered the question under Rule 8.4 (c) Misconduct and Rule 4.4 Respect for Rights of Third Persons of the ABA Model Rules. Rule 8.4(c) states as follows:

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

At the outset, the Committee expressly stated that the opinion did not address the applicability of the Model Rules to lawyers involved in deceitful but otherwise lawful conduct involving nonconsensual recording of conversations relating to criminal activity, discriminatory practices and trademark infringement:

We conclude that the mere act of secretly but lawfully recording a conversation inherently is not deceitful, and leave for another day the separate question of when investigative practices involving misrepresentations of identity and purpose nonetheless may be ethical. Formal Opinion 01-422 at page 1.

In explaining the rationale for the withdrawal of Formal Opinion 337, the Committee noted that court decisions and state bar opinions issued on the topic had not all agreed with the conclusions reached in Opinion 337:

Courts and committees in a number of states have adopted the position of the opinion. The State Bar of Michigan Standing Committee on Professional and Judicial Ethics initially agreed with Opinion 337, but later found that the ethics of nonconsensual recording should be considered on a case-by-case basis. The New York State Bar adopted a per se rule condemning nonconsensual recordings, while the New York City Bar recognized exceptions to that position in the case of prosecutors and defense counsel in criminal investigations. The New York County Bar more recently opined that recording of a conversation without the consent of the other party is not, in and of itself, unethical.

In Virginia, a series of opinions condemned nonconsensual recordings by or at the direction of lawyers, but the latest opinion on the subject found such conduct not to be unethical when done for the purpose of a criminal or housing discrimination investigation. The Virginia Standing Committee on Legal Ethics noted there may be other factual situations in which the same result would be reached. Oklahoma, Utah, and Maine have rejected the broad prohibition of Opinion 337, saying that nonconsensual recordings by lawyers are not unethical unless accompanied by other deceptive conduct. The District of Columbia also found a per se rule inappropriate, and Kansas has found surreptitious recording by lawyers to be "unprofessional," but not unethical. Formal Opinion 01-422 at page 3.

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The Committee also analyzed the existing state bar opinions and commentary and noted that there were three principal recurring criticisms of Opinion 337. First, the Committee noted that it was no longer generally accepted that nonconsensual recording of conversations was inherently deceitful:

The overwhelming majority of states permit recording by consent of only one party to the conversation. Surreptitious recording of conversations is a widespread practice by law enforcement, private investigators and journalists, and the courts universally accept evidence acquired by such techniques. Devices for the recording of telephone conversations on one's own phone readily are available and widely are used. Thus, even though recording of a conversation without disclosure may to many people "offend a sense of honor and fair play," it is questionable whether anyone today justifiably relies on an expectation that a conversation is not being recorded by the other party, absent a special relationship with or conduct by that party inducing a belief that the conversation will not be recorded. Formal Opinion 01-422 at page 3.

Second, the Committee noted that there may be legitimate reasons for making such recordings:

The State Bar of Arizona, for example, listed four exceptions to the ethical prohibition for such things as documenting criminal utterances (threats, obscene calls, etc.); documenting conversations with potential witnesses to protect against later perjury; documenting conversations for self-protection of the lawyer; and recording when "specifically authorized by statute, court rule or court order." Other ethics committees have excepted recordings by criminal defense lawyers, reasoning that the commonly accepted "law enforcement exception" otherwise would give prosecutors an unfair advantage. Exceptions also have been recognized for "testers" in investigations of housing discrimination and trademark infringement. And the Ohio Supreme Court, although finding nonconsensual recordings by lawyers generally impermissible, has noted an exception for "extraordinary circumstances" as well as for investigations by prosecutors and criminal defense lawyers. Formal Opinion 01-422 at page 4.

Third, the Committee stated that the reasoning of Formal Opinion 337 was not consistent with the Model Rules. Specifically, the appearance of impropriety standard was not a part of the Model Rules and Rule 4.4 Respect for Rights of Third Persons, which would be applicable in this context and which was not a part of the Model Code, prohibits only "means that have no substantial purpose other than to embarrass, delay or burden a third person" and "methods of obtaining evidence that violate the legal rights of such a person."

The Committee stated further that in those jurisdictions where nonconsensual recordings were illegal, it would likely be a violation of Rules 8.4(c) and (d) and Rule 4.4 if the lawyer were to make the recording, and that the lawyer should take care to check the local laws, case law and ethics opinions in the jurisdiction before making the recording. See, e.g. Nissan Motor Co., Ltd. v. Nissan Computer Corp., 180 F.Supp.2d 1089 (C.D. Cal. Jan. 14, 2002) (recordation of conversations between counsel in normal course of civil litigation, without consent, is violation of California penal law and is inherently unethical). The Committee also stated that if the lawyer was ever asked if he was recording the conversation, the lawyer would likely violate Rule 4.1 Truthfulness in Statements to Others if he were to falsely deny that he was making the recording.

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State bar opinions and related developments

State bar opinions on this topic are mixed. Some state bar opinions issued after Opinion 01-422 follow the ABA analysis, and withdrew earlier opinions that came to conclusions similar to those of Formal Opinion 337. See, e.g. Alaska Opinion 2003-1 and Texas Opinion 575 (2006). At its 2002 meeting, the Minnesota Office of Lawyers Professional Responsibility withdrew Minnesota Bar Opinion 18 which had followed the 337 analysis. See, Opinion Barring Secret Recording of Conversations is Repealed, Minnesota Lawyer, June 3, 2002.

In 2003, the Tennessee Supreme Court amended the commentary to Rules 4.4 and 8.4 of the Tennessee Rules of Professional Conduct so as make clear that the secret recording of conversations was not unethical per se.

Some bar opinions issued prior to ABA Opinion 01-422 also found a general prohibition against recording conversations to be inconsistent with the Model Rules. See, e.g. Oklahoma Bar Opinion 307 (1994).

Other opinions state that in general, secret recordings of conversations are unethical. See, The Association of the Bar of the City of New York Opinion 2003-2 (2003), a digest of which states:

A lawyer may not secretly record conversations as a matter of routine practice. Doing so would involve a sufficient lack of candor and a sufficient element of trickery as to render it ethically impermissible. However, a lawyer may record a conversation without disclosing this fact to all participants if the lawyer has a reasonable basis to believe that disclosure would significantly impair the pursuit of a generally accepted societal good.

See Also Supreme Court of Ohio Board of Commissioners on Grievances and Discipline Opinion 97-3 (1997) (Note: this opinion was decided under the Ohio version of the ABA Model Code of Professional Responsibility):

An attorney in the course of legal representation should not make surreptitious recordings of his or her conversations with clients, witnesses, opposing parties, opposing counsel, or others without their notification or consent. The act of surreptitious recording by attorneys may violate DR 1-102(A)(4) unless the act when considered in the context of the circumstances does not rise to the level of dishonesty, fraud, deceit, or misrepresentation. The burden would be upon each individual attorney to justify on a case by case basis why the facts and circumstances surrounding the surreptitious recording did not violate DR 1-102(A)(4). Recognized exceptions to the prohibition on surreptitious recording include prosecuting and law enforcement attorney exception; criminal defense attorney exception; and extraordinary circumstances exception.

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Some opinions on this topic are very fact specific. See, e.g. New Mexico State Bar Opinion 2005-03 (2005) that stated that a lawyer may not secretly record a conversation if the lawyer believes that the witness would not consent to being interviewed if the witness knew the conversation was being recorded. The opinion concluded:

The Rules of Professional Conduct preclude the secret recording of a witness interview by a lawyer, or anyone acting under the lawyer's control, if such a recording would involve deceiving the witness either by commission or omission. Circumstances that would bar such a recording include, but may not be limited to, instances wherein the witness has made any expression that the witness believes the interview is "off the record" or has indicated that, if a recording were made, no interview would be granted. 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 and must always consider the obligations placed upon a lawyer by the Rules of Professional Conduct. In so doing, the Committee does not mean to opine that under no circumstances would the practice be permissible. Rather, the analysis remains a very fact specific one.)

See Also the following two opinions from Arizona. Arizona Opinion 95-03 (1995) (The secret tape recording of a telephone conversation with opposing counsel involves an element of deceit and misrepresentation. As such, the surreptitious tape recording of a telephone conversation with opposing counsel does not comport with Arizona ethics standards.) and Arizona 00-04 (2000) (An attorney may ethically advise a client that the client may tape record a telephone conversation in which one party to the conversation has not given consent to its recording, if the attorney concludes that such taping is not prohibited by federal or state law.)

In view of the varied approaches to the surreptitious recording of conversations as illustrated by the ABA, state and local bar opinion, lawyers should carefully check the rules of professional conduct, laws and case law of the jurisdiction before secretly pressing the "record" button.

For further resources on legal ethics issues as they relate to secret recording of conversations, see the state bar ethics opinions and related materials that are listed on the additional resources page.

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