THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

FORMAL OPINION 1995-10

COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS

July 6, 1995

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.