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THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
FORMAL OPINION 2003-02
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.
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
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:
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
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:
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.
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.
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.