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?
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
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
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
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.
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
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
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.
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
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.
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.
- 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).
- 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
- 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.
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
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
- 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
See, e.g., New York County Lawyers’ Ass’n Committee on Professional
Ethics Op. 696 (July 28, 1993).
- 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).
- 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
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
to hide the recording from the other person suggests a purpose for the recording
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).
- 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).
Issued: June, 2003