ACTION: FORMAL OPINION
OPINION:
TOPIC: Secret taping;
conversations between lawyers and adversary counsel.
DIGEST: A lawyer may not tape
record a telephone or in-person conversation with an adversary
attorney without informing the adversary that the conversation is
being taped.
CODE: DRs 1-102(A)(4),
7-102(A)(7), 7-102(A)(8).
QUESTION
May a lawyer tape record a
telephone or in-person conversation with an adversary attorney
without informing that attorney that the conversation is being
taped?
OPINION
The inquirer wishes systematically
to tape record conversations between herself and opposing counsel
without advising opposing counsel that the conversations are
being recorded. She asks whether secretly recording conversations
in this way complies with applicable ethical rules. Although the
inquirer does not specify whether the conversations she seeks to
record will be by telephone or in person, our conclusion is the
same in either case. We answer the inquiry in the negative.
With a limited exception not
applicable here, N.Y. City 80-95 held that the secret recording
of conversations by attorneys is generally improper under DR
1-102(A)(4), which prohibits conduct involving "dishonesty,
deceit, fraud or misrepresentation." * See also N.Y. City
836 (1958) (finding otherwise lawful lawyer-lawyer taping to be a
violation of Canon 22, which required that "[t]he conduct of
the lawyer . . . with other lawyers should be characterized by
candor and fairness").
* This discussion assumes that
secret taping is not illegal. See N.Y. Penal Law §§ 250.00,
250.05. Lawyers may not engage in any illegal conduct. See DR
7-102(A)(7), (8).
Various other committees have
taken similar positions on the issue, including most notably the
American Bar Association, see ABA 337 (1974) (leaving open only
the possibility that prosecutors might, in "extraordinary
circumstances," properly make and use secret recordings
"if acting within strict statutory regulations conforming to
constitutional requirements") and the New York State Bar
Association, see N.Y. State 328 (1974) (condemning the recording,
in any context, of a conversation by attorneys without the
consent of all parties to the conversation). See also Alabama
84-22; Alaska 83-2; Dallas 1981-5; Hawaii 30 (1988); Tennessee
81-F-14; Texas 392 (1978).
We conclude that the inquirer may
not ethically record telephone or in-person conversations with
opposing counsel without first advising him or her that the
inquirer intends to record the conversations. In so doing, we
reject the approach taken by other bodies that have concluded
that secret taping, in itself, is not violative of any ethical
rules provided it is lawful in the locality in which it is
undertaken and no affirmative misrepresentations are made as to
whether the conversation in question is being recorded. See N.Y.
County 696 (1993); Arizona 90-2; Kentucky E-279 (1984); Oklahoma
307 (1994); Oregon 1991-74; Utah 90 (1989).
Our opinion is based solely on the
facts set forth above and is limited to the context of
attorney-attorney taping. We express no opinion as to whether the
Committee might, in the future, reach a different conclusion upon
the submission of an inquiry involving different facts or
extenuating circumstances.
CONCLUSION
The inquiry is answered in the
negative.
