Wiretapping, Tape Recorders & Legal Ethics: Questions Posed by Attorney Involvement in Secretly Recording Conversation

This document also available in PDF Image . The lawfulness of wiretapping and electronic eavesdropping is the subject of federal law. Recently questions have arisen as to how this applies to attorneys. Surreptitiously recording telephone or face to face conversations without the consent of at least one party to the conversation is illegal and contrary to the ethical standards of the legal profession. In some states recording such conversations requires the consent of all parties to the conversation. Elsewhere, recording a conversation with the knowledge or consent of only one participant may be lawful but unethical. The American Bar Association (ABA) concluded almost a quarter of a century ago that secretly recording a conversation without the knowledge or consent of all of the participants violated the ethical prohibition against engaging in conduct involving "dishonesty, fraud, deceit or misrepresentation." The ABA conceded, however, that law enforcement recording, conducted under judicial supervision, breached no ethical standard. The opinions of the authorities responsible for regulation of the practice of law in the various states fall into three categories. Some agree with the ABA. Some agree with the ABA but have expanded the circumstances under which recording is considered within ethical bounds. Some reject the ABA view. Since the assessment of whether a particular recording offends ethical standards may well be determined by whether the tribunal considers all secret recording ethically repugnant (some do, some do not), the prudent lawyer avoids such recording fully aware that others may be allowed to record with impunity. Summaries and excerpts from relevant state court and bar association ethics committee opinions are appended.