FORMAL OPINION 2003-02

UNDISCLOSED TAPING OF CONVERSATIONS BY LAWYERS

TOPIC: Undisclosed taping of conversations by lawyers.

DIGEST: A lawyer may not, as a matter of routine practice, tape record conversations without disclosing that the conversation is being taped. A lawyer may, however, engage in the undisclosed taping of a conversation if the lawyer has a reasonable basis for believing that disclosure of the taping would impair pursuit of a generally accepted societal good. NY City 1980-95 and 1995-10 are modified by this opinion.

CODE: DRs 1-102(a)(4), 7-102(a)(5), 7-102(a)(7), 7-102(a)(8)

QUESTION: May a lawyer tape record a conversation without informing all parties to the conversation that it is being recorded?

OPINION:

In June 2001, the American Bar Association (“ABA”) reversed course with respect to whether it is permissible for lawyers to tape a conversation without disclosing that the conversation was being taped. For more than twenty-five years, it was the position of the ABA that undisclosed taping by any lawyers other than law enforcement officials was unethical. See ABA Formal Op. 337 (1974). In Formal Opinion 01-422, however, the ABA reversed its position, opining that undisclosed taping was not in and of itself unethical unless prohibited by the law of the relevant jurisdictions.

The Professional Responsibility Committee of this Association has recommended to this Committee that we follow the lead of the ABA – at least to the extent of modifying our prior opinions declaring all undisclosed taping by lawyers in civil and commercial contexts to be unethical. We have revisited the issue of undisclosed taping by lawyers and conclude that our prior opinions, like the ABA’s 1974 opinion, swept too broadly. However, we regard the ABA’s new position as an overcorrection.

This Committee remains of the view, first expressed in NY City 1980-95, that undisclosed taping smacks of trickery and is improper as a routine practice. At the same time, however, we recognize that there are circumstances in which undisclosed taping should be permissible on the ground that it advances a generally accepted societal good. We further recognize that it would be difficult, if not impossible, to anticipate and catalog all such circumstances, and that a lawyer should not be subject to professional discipline if he or she has a reasonable basis for believing such circumstances exist. NY City 1980-95 and 1995-10 are modified accordingly. 1

DISCUSSION:

ABA Formal Opinion 01-422 offers a variety of reasons for abandoning a general prohibition against undisclosed taping. Some of the reasons offered are more persuasive than others. None, in the view of this Committee, provides persuasive support for the conclusion that undisclosed taping, as a routine practice, should be permissible for attorneys.

The ABA’s Opinion leads with the suggestion that reversal of the prohibition against undisclosed taping is warranted by an intervening change in societal attitudes and practices with respect to undisclosed taping. Thus, according to the ABA:

the belief that nonconsensual taping of conversations is inherently deceitful, embraced by this Committee in 1974, is not universally accepted today. 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 required 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.

ABA Formal Opinion 01-422 (footnotes omitted).

We are unpersuaded that there has been any material change in societal attitudes or practices with respect to undisclosed taping since the 1970s. While it is certainly true that many states currently permit the recording of conversations without the consent of all parties and that courts routinely accept evidence acquired by such techniques, the same could have been said at the time the ABA issued its 1974 Opinion. Similarly, we are unaware of any reason to believe that undisclosed taping is significantly more prevalent today as an investigative technique than it was in the 1970s. To the contrary, as at least one court has noted, the ABA’s 1974 opinion expressly cited the prevalence of surreptitious recording as the reason why a formal opinion on the subject was advisable. See Anderson v. Hale, 202 F.R.D. 548, 557 n.5 (N.D. Ill. 2001). 2
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This Committee likewise does not share the ABA’s skepticism with respect to whether individuals today can justifiably assume that a conversation is not being recorded – particularly when the conversation is with an attorney. Anyone who has ever had occasion to call customer service for a telephone, bank or charge account – i.e., the overwhelmingly majority of U.S. residents – has repeatedly been greeted with a taped message advising callers that their conversations may be recorded for quality control or training purposes. Accordingly, we believe it is neither unlikely nor unjustifiable that many individuals assume that a commercial conversation will not be recorded unless they have been given notice of the possibility that it will be. Nor do we think it unjustifiable for individuals to assume – or advisable for the legal profession to discourage individuals from assuming – that the business practices of lawyers are any less courteous and honorable than those of the local bank or telephone company.

In any event, we regard the state of mind of the recording’s target to be considerably less relevant than the state of mind of the individual making the decision to engage in undisclosed taping. And however much the expectations of the target may be subject to debate, it cannot seriously be doubted that an individual who engages in undisclosed taping does so in the hope that the target is not expecting to be taped. Indeed, it is difficult to conceive of any other reason for failing to disclose that the conversation is being taped. It was in recognition of that fact that our first opinion on undisclosed taping characterized the practice as “smacking of trickery,” NY City 1980-95, and joined ABA Formal Opinion 337 in concluding that undisclosed taping was, as a general matter, violative of DR 1-102(a)(4)’s proscription against engaging in conduct that “involv[ed] dishonesty, deceit, fraud or misrepresentation.” 3

Undisclosed taping smacks of trickery no less today than it did twenty years ago. In that respect, the passage of time has not altered the analysis. What has, however, emerged over the years is an increasing recognition of the variety of circumstances in which the practice of undisclosed taping can be said to further a generally accepted societal good and thus be regarded as consistent with “the standards of fair play and candor applicable to lawyers.” NY City 1980-95. 4

We invoked that principle in our 1980 opinion to support an exception to the general rule against undisclosed taping for criminal defense lawyers who may need to secretly record conversations with certain witnesses. Since that time, other bar committees, boards and courts have adopted that exception, recognized a variety of others (such as the investigation of housing discrimination and other actionable business practices and the documentation of threats or other criminal utterances), and/or opined that the permissibility of undisclosed taping should be determined on a case-by-case basis. 5 In addition, some committees have gone so far as to opine that undisclosed taping is not, in and of itself, unethical. 6

ABA Formal Opinion 01-422 cites the variety of approaches that have been taken as support for its conclusion that it is time simply to declare the general rule to be that undisclosed taping is, in and of itself, not ethically proscribed:

A degree of uncertainty is common in the application of rules of ethics, but an ethical prohibition that is qualified by so many varying exceptions and such frequent disagreement as to the viability of the rule as a basis for professional discipline is highly troubling. We think the proper approach to the question of legal but nonconsensual recordings by lawyers is not a general prohibition with certain exceptions, but a prohibition of the conduct only where it is accompanied by other circumstances that make it unethical.

In fact, however, most of the opinions cited by the ABA are less at odds with one another than reflective of a cautious case-by-case evolution toward the general principle that if undisclosed taping is done under circumstances that can be said to further a generally accepted societal good, it will not be regarded as unethical.

While that principle carries with it, as many ethical rules do, some risk of uncertainty in its application, attorneys can easily minimize that risk by confining the practice of undisclosed taping to circumstances in which the societal justification is compelling. In addition, even if a disciplinary body does not necessarily share an attorney’s assessment of the need for undisclosed taping in a particular set of circumstances, there is little likelihood of, and no need for, the imposition of sanctions as long as the attorney had a reasonable basis for believing that the surrounding circumstances warranted undisclosed taping. We accordingly regard there to be less conflict in the field, and less risk to attorneys in the field, than is suggested by the ABA’s Opinion.

We also have yet to see any persuasive argument – either in the ABA’s recent opinion or elsewhere – in support of permitting undisclosed taping as a matter of routine practice.
The committees that have opined that undisclosed taping is not in and of itself unethical have tended to stress either that the practice is legal in that jurisdiction,7 that there are unquestionably times when there is a good reason to engage in undisclosed taping, 8 and/or that tape recording “is merely a technological convenience, providing a more accurate means of documenting rather than relying on one’s memory, notes, shorthand, transcription, etc. for recall.” Ok. Bar. Assoc. Op. 307 (1994).

If, however, the only reasons for taping are convenience and increased accuracy, there is no reason to refrain from disclosing that the conversation is being taped. 9 Nor is it correct that undisclosed taping has no effect other than providing an accurate record of what was said. As attorneys are well aware, individuals tend to choose their words with greater care and precision when a verbatim record is being made and some individuals may not wish to speak at all under such circumstances. Undisclosed taping deprives an individual of the ability to make those choices. Undisclosed taping also confers upon the party making the tape the unfair advantage of being able to use the verbatim record if it helps his cause and to keep it concealed if it does not. In addition, because undisclosed taping has those effects, it therefore also has the potential effect of undermining public confidence in the integrity of the legal profession, which in turn undermines the ability of the legal system to function effectively. See, e.g., Anderson v. Hale, 202 F.R.D. at 556 (noting that open discussion is vital to the advancement of justice and that the public’s willingness to speak openly with attorneys is directly affected by public perception of the integrity of attorneys); NY City 80-95 (undisclosed taping has the potential to “undermine those conditions which are essential to a free and open society”).

The fact that a practice is legal does not necessarily render it ethical. Moreover, the fact that the practice at issue remains illegal in a significant number of jurisdictions10 is a powerful indication that the practice is not one in which an attorney should readily engage. Similarly, the fact that there are times when a valid reason exists to engage in undisclosed taping does not mean that if should be permitted when there is no valid reason for it. No societal good is furthered by allowing attorneys to engage in a routine practice of secretly recording their conversations with others, and there is considerable potential for societal harm.

Accordingly, while this Committee concludes that there are circumstances other than those addressed in our prior opinions in which an attorney may tape a conversation without disclosure to all participants, we adhere to the view that undisclosed taping as a routine practice is ethically impermissible. We further believe that attorneys should be extremely reluctant to engage in undisclosed taping and that, in assessing the need for it, attorneys should carefully consider whether their conduct, if it became known, would be considered by the general public to be fair and honorable.

In situations involving the investigation of ongoing criminal conduct or other significant misconduct that question will often be easy to answer in the affirmative. The same is true with respect to individuals who have made threats against the attorney or a client or with respect to witnesses whom the attorney has reason to believe may be willing to commit perjury (in either a civil or a criminal matter).

The answer is likely to be far less clear with respect to witnesses whom the attorney has no reason to believe will engage in wrongdoing, and the prudent attorney will, absent extraordinary circumstances, refrain from engaging in the undisclosed taping of such witnesses. Similarly, while we are not prepared to state that it would never be ethically permissible to engage in the undisclosed taping of a client or a judicial officer, the circumstances in which doing so would be ethically permissible are likely to be few and far between.

Finally, as we have made clear, merely wishing to obtain an accurate record of what was said does not justify undisclosed taping. Nor, at least with respect to individuals who are not potential witnesses, is undisclosed taping justified by a desire to guard against the possibility of a subsequent denial of what was said. Such practices constitute engaging in undisclosed taping as a routine matter and, for the reasons discussed above, are ethically impermissible.

Conclusion

NY City 80-95 and 95-10 are modified. A lawyer may tape a conversation without disclosure of that fact to all participants if the lawyer has a reasonable basis for believing that disclosure of the taping would significantly impair pursuit of a generally accepted societal good. However, undisclosed taping entails a sufficient lack of candor and a sufficient element of trickery as to render it ethically impermissible as a routine practice.

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1. This opinion assumes that the taping occurs in a jurisdiction where taping without disclosure to all parties is legal and that the attorney has not represented that the conversation is not being recorded. Attorneys may not engage in illegal conduct, see DR 7-102(a)(7), (8), or knowingly make a false statement of fact. See DR 7-102(a)(5).
2. Formal Opinion 337 begins with the following statement:

   Recent technical progress in the design and manufacture of sophisticated electronic recording equipment and revelations of the extent to which such equipment has been used in government offices and elsewhere make it desirable to issue a Formal Opinion as to the ethical questions involved.

3. We reaffirmed our general disapproval of undisclosed taping in NY City 1995-10, which opined that 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.
   
4. As we noted in our 1980 opinion:
   Unlike more explicit ethical prohibitions, concepts like candor and fairness take their content from a host of sources – articulated and unarticulated – which presumably reflects a consensus of the bar’s or society’s judgments. Without being unduly relativistic, it is nevertheless possible that conduct which is considered unfair or even deceitful in one context may not be so considered in another. (See, e.g.., the ABA’s Proposed Model Rules of Professional Conduct, Rule 4.1, Comment concerning assertions made in settlement negotiations.)
   
5. Mena v. Key Food Stores Co-Operative, Inc., Index No. 6266/01 (Sup. Ct. Kings County, NY) (March 31, 2003) (approving use of undisclosed taping for the purpose of Title VII investigation); Virginia Legal Ethics Opinion 1738 (April 13, 2000) (approving use of undisclosed taping for the purpose of a criminal or housing discrimination investigation and noting that there may be other factual situations in which the same result would be reached); Gidatex v. Campaniello Imports Ltd., 82 F. Supp. 2d 119 (S.D.N.Y. 1999)(investigation of trademark infringement); State Bar of Michigan Standing Committee on Professional and Judicial Ethics Op. RI-309 (May 12, 1998) (case-by-case approach); Apple Corps Ltd., MPL v. Int’l Collectors Soc., 15 F. Supp. 2d 456 (D.N.J. 1998)(investigation of compliance with terms of consent decree in copyright action);Supreme Court of Ohio Board of Commissioners on Grievances and Discipline Op. 97-3 (June 13, 1997) (use by prosecutors and criminal defense lawyers and in “extraordinary circumstances”); Minn. Law Prof. Resp. Bd. Eth. Op. 18 (1996) (use by prosecutors, government attorneys charged with civil law enforcement authority, and criminal defense attorneys); Hawaii Sup. Ct. Formal Op. 30 (Modification 1995) (case-by-case approach); Board of Professional Responsibility of the Supreme Court of Tenn. Formal Ethics Op. 86-F-14(a) (July 18, 1986) (use by criminal defense lawyers); Kentucky Bar Ass’n Op. E-279 (Jan. 1984) (same); Arizona Op. No. 75-13 (June 11, 1975) (use to document criminal utterances, to document conversations with potential witnesses to protect against later perjury, to document conversations for self-protection of lawyer, and when “specifically authorized by statute, court rule or court order").
6. Maine Professional Ethics Commission of the Bd. Of Overseers of the Bar Op. 168 (March 9, 1999); Kansas Bar Ass’n Ethics Op. 96-9 (August 11, 1997); Utah State Bar Ethics Advisory Op. Committee No. 96-04 (July 3, 1996); Oklahoma Bar Ass’n Op. 307 (March 5, 1994); New York County Lawyers’ Ass’n Committee on Professional Ethics Op. 696 (July 28, 1993).
7. See, e.g., New York County Lawyers’ Ass’n Committee on Professional Ethics Op. 696 (July 28, 1993).
8. See, e.g., Utah State Bar Ethics Advisory Op. Committee No. 96-04 (July 3, 1996); Alaska Ethics Opinion No. 2003-1 (January 24, 2003).
9. In this regard, the Ohio Board of Commissioners on Grievances and Discipline has aptly observed:
   Although the accurate recall of information is important to attorneys in providing legal
   representation, this on its own does not persuade the Board to condone the routine use of surreptitious recordings in the practice of law. For those who wish to use taping as a way of assisting the memory, consent may be obtained. The fact that an attorney wants to hide the recording from the other person suggests a purpose for the recording that is not straightforward. Recordings made with the consent of all parties to the
   communication are consistent with the ideals of honesty and fair play, whereas
   recordings made by clandestine or stealthy means suggest otherwise. Supreme Court of Ohio Board of Commissioners on Grievances and Discipline Op. 97-3 (June 13, 1997).
10. A law review note published in 1998 surveyed the legality of recording a conversation without the consent of all parties and reported that it was illegal in twelve states: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington. See Stacy L. Mills, Note, He Wouldn’t Listen to Me Before, But Now…: Interspousal Wiretapping and an Analysis of State Wiretapping Statutes, 37 Brandeis L.J. 415, 429 and nn. 127, 127 (Spring 1998). In addition, while Oregon permits telephone conversations to be recorded without the consent of all parties, it prohibits undisclosed taping of in-person conversations. Or. Rev. Stat. § 165.540 (1999).