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

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

98-251 A
March 12, 1998
CRS Report for Congress
Received through the CRS Web
Wiretapping, Tape Recorders & Legal Ethics:
Questions Posed by Attorney Involvement in
Secretly Recording Conversation
(name redacted)
Senior Specialist
American Law Division
Summary
The American Bar Association considers recording a telephone or face to face
conversation without the knowledge and consent of the parties to conversation contrary
to the ethical standards of the legal profession. Some of the state court and bar
association committees responsible for the regulation of the practice of law agree; some
disagree; and some agree but with exceptions.
Query
Has an attorney engaged in unprofessional conduct when he or she secretly records
a conversation? The practice is unquestionably unethical when it is done illegally; its
status is more uncertain when it is done legally.
Both the Code of Professional Responsibility (DR 1-102(A)(3)) and the Model Rules
of Professional Conduct (Rule 8.4(b)), models for the standards binding on members of
the Bar in most jurisdictions, broadly condemn illegal conduct as unethical.1 In the
absence of an applicable exception, secretly recording either a telephone or face to face
conversation is a violation of the Electronic Communications Privacy Act provisions that
1 Strictly speaking neither model includes all crimes. The Rules of Professional Conduct refer
to any criminal act “that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as
a lawyer in other respects” and the Code of Professional Responsibility to conduct “involving
moral turpitude.” No one doubts inclusion of illegal wiretapping or electronic eavesdropping
within the proscribed class in either case, N.C. RPC 192 (1995); Ore. State Bar Ass’n Formal
Opinion 1991-74; Va. LEO #1324 (1990). Summaries or excerpts from state courts and state bar
association ethics committees are appended to the longer version of this report, CRS Report 98-
250.
Congressional Research Service ˜ The Library of Congress

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proscribe the use of an electronic or mechanical device to intercept wire, oral or electronic
communications, 18 U.S.C. 2510, 2511.
Exceptions are available for judicially supervised, law enforcement interceptions
under procedures dictated by the Act, 18 U.S.C. 2511(1). It is likewise “not unlawful”
under the federal Act to record a conversation, as long as one of the parties to the
conversation consents, regardless of whether the recording is accomplished by someone
“acting under color of law” (the police) or someone “not acting under color of law”
(everyone else), 18 U.S.C. 2511(2)(c), (d).
State law frequently follows a similar pattern — recording is outlawed subject to a
one party consent exception for either the police or both the police and everyone else. Yet
several states make unlawful what is “not unlawful” under federal law; they ban recording
but are less forgiving of consent interceptions. In California, Delaware, Florida, Illinois,
Kansas, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon,
Pennsylvania, and Washington, some types of recording that are lawful as a matter of
federal law are illegal as a matter of state law and consequently are unethical.2
In the remaining jurisdictions, recording that is lawful may nevertheless be unethical.
Its status turns upon construction of the command that attorneys avoid “conduct involving
dishonesty, fraud, deceit, or misrepresentation,” DR 1-102(A)(4); Rule 8.4(c). Almost
a quarter of a century ago, the ABA declared that the phrase “dishonesty, fraud, deceit or
misrepresentation” includes recording a conversation without the consent of all of the
parties to a conversation, even if the conduct is lawful, ABA Formal Op. 337 (1974).3
The Opinion conceded an exception for court-ordered interceptions.4 Most jurisdictions
to consider the question have concurred. In doing so, some recognize an expanded class
of exceptions. And some disagree.
The convictions expressed by the Texas Professional Ethics Committee are typical
of the states that follow the ABA approach:
2 Some of these jurisdictions permit interception with one party consent for either telephone or
oral communications but not both; some permit interception in criminal cases with one party
consent but require the consent of all parties for interception by the general public or if the
interception is unrelated to any of a list of statutory designated offenses.
3 “The conduct proscribed in DR 1-102(A)(4), i.e., conduct which involves dishonesty, fraud,
deceit or misrepresentation . . . clearly encompasses the making of making of recordings without
the consent of all parties . . . [N]o lawyer should record any conversation whether by tapes or
other electronic device, without the consent or knowledge of all parties to the conversation,” ABA
Formal Op. 337, at 3 (1974).
4 “There may be extraordinary circumstances in which the Attorney General of the United States
or the principal prosecuting attorney of a state or local government or law enforcement attorneys
or officers acting under the direction of the Attorney General or such principal prosecuting
attorneys might ethically make and use secret recordings if acting within strict statutory
limitations conforming to constitutional requirements. This opinion does not address such
exceptions which would necessarily require examination on a case by case basis” id.
Note that under federal law in effect at the time an application for judicially supervised
wiretapping for law enforcement purposes required the approval of the Attorney General or
principal prosecuting attorney of a state or political subdivision of a state, but law enforcement
wiretapping with one party consent required no such approval, 18 U.S.C.2516, 2511 (1972 ed.).

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In February 1978, this Committee addressed the issue of whether an
attorney in the course of his or her practice of law, could electronically record
a telephone conversation without first informing all of the parties involved.
The Committee concluded that, although the recording of a telephone
conversation by a party thereto did not per se violate the law, attorneys were
held to a higher standard. The Committee reasoned that the secret recording of
conversations offended most persons’ concept of honor and fair play.
Therefore, attorneys should not electronically record a conversation without
first informing that party that the conversation was being recorded.
The only exceptions considered at that time were `extraordinary
circumstances with which the state attorney general or local government or law
enforcement attorneys or officers acting under the direction of a state attorney
general or such principal prosecuting attorneys might ethically make and use
secret recordings if acting within strict statutory limitations conforming to
constitutional requirements,’ which exceptions were to be considered on a case
by case basis.
. . . [T]his Committee sees no reason to change its former opinion.
Pursuant to Rule 8.04(a)(3), attorneys may not electronically record a
conversation with another party without first informing that party that the
conversation is being recorded. Tex. Prof. Eth. Comm. Opinion No. 514
(1996).
The states that appear to share this view include Alabama, Alaska, Colorado, Hawaii,
Iowa, Missouri, and Virginia.5 Thus far, the federal courts also seem to be in accord.6
A second group of states — Arizona, Idaho, Kansas, Kentucky, Minnesota, Ohio,
South Carolina, and Tennessee — concur but with an expanded list of exceptions, e.g.,
permitting recording by law enforcement personnel generally not just when judicially
supervised,7 or recording by criminal defense counsel,8 or recording statements that
themselves constitute crimes such as bribery offers or threats,9 or recording confidential
5 Ala. Opinion 84-22 (1984); Alaska Bar Ass’n Eth.Comm. Ethics Opinions No. 92-2 (1992) and
No. 91-4 (1991); People v. Smith, 778 P.2d 685, 686, 687 (Colo. 1989); Haw. Formal Opinion
No. 30 (1988); Iowa State Bar Ass’n v. Mollman, 488 N.W.2d 168, 169-70, 171-72 (Iowa 1992);
Mo.Advisory Comm. Op. Misc. 30 (1978); Va. LEO #1635 (1995), Va. LEO #1324; Gunter v.
Virginia State Bar, 238 Va. 617, 621-22, 385 S.E.2d 597, 600 (1989).
6 Parrott v. Wilson, 707 F.2d 1262 (11th Cir. 1983); Moody v. IRS, 654 F.2d 795 (D.C. Cir.
1981); Ward v. Maritz, Inc., 156 F.R.D. 592 (D.N.J. 1994); Wilson v. Lamb, 125 F.R.D. 142
(E.D.Ky. 1989); Haigh V. Matsushita Electric Corp., 676 F.Supp. 1332 (E.D.Va. 1987).
7 Ariz. Opinion No. 95-03 (1995); Ky.Opinion E-279 (1984); Minn.Law.Prof. Resp.Bd. Opinion
No. 18 (1996); Ohio Bd.Com.Griev.Disp. Opinion No. 97-3 (1997); S.C. Ethics Advisory Opinion
92-17 (1992); Tenn.Bd.Prof.Resp. Formal Ethics Opinion No. 86-F-14(a) (1986).
8 Ariz. Opinion No. 95-03 (1995); Ky.Opinion E-279 (1984); Minn.Law.Prof.Resp.Bd. Opinion
No. 18 (1996); Ohio Bd.Com.Griev.Disp. Opinion No. 97-3 (1997); Tenn.Bd.Prof.Resp. Formal
Ethics Opinion No. 86-F-14(a) (1986).
9 Ariz. Opinion No. 95-03 (1995); Tenn.Bd.Prof.Resp. Formal Ethics Opinion No. 86-F-14(a)
(1986).

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conversations with clients,10 or recordings made solely for the purpose of creating a
memorandum for the files,11 or recording by a government attorney in connection with a
civil matter,12 or recording under other extraordinary circumstances.13
A third group of jurisdictions have refused to adopt the ABA unethical per se
approach. In one form or another the District of Columbia, Mississippi, New Mexico,
North Carolina, Oklahoma, Oregon, Utah and Wisconsin suggest that the position that the
propriety of an attorney surreptitiously recording his or her conversations where it is
lawful to do so depends upon the other circumstances involved in a particular case.14
In New York, the question of whether an attorney’s surreptitiously recording
conversations is ethically suspect is determined by locality.15 There is general agreement
that attorney may advise his or her clients of the circumstances under which surreptitious
recording is lawful, but that an attorney may not use client, agent or any other individual
to evade any ethical limitation to which the attorney is subject.
In several jurisdictions, the question of whether lawful recording is per se unethical
has yet to arise. Elsewhere the hold of precedent of either persuasion may prove unsure
for a simple reason. There is no rational consistency between the per se rule and its
exceptions; between the reason why one party consent should be lawful and why it should
be unethical. They represent two irreconcilable schools of thought with the outcome of
any given case determined by the predilection of the tribunal. The prudent lawyer avoids
surreptitious recording, aware that in similar circumstances others may be allowed to
10 Idaho Formal Opinion 130 (1989); Minn.Law.Prof.Resp.Bd. Opinion No. 18 (1996)
11 Kan.Bar Ass’n Opinion 96-9 (1997).
12 Minn.Law.Prof.Resp.Bd. Opinion No. 18 (1996).
13 Ohio Bd.Com.Griev.Disp. Opinion No. 97-3 (1997).
14 D.C. Opinion No. 229 (1992) (recording was not unethical because it occurred under
circumstances in which the uninformed party should have anticipated that the conversation would
be recorded or otherwise memorialized); Mississippi Bar v. Attorney ST., 621 So.2d 229 (Miss.
1993)(context of the circumstances test); N.M.Opinion 1996-2 (1996)(members of the bar are
advised that there are no clear guidelines and that the prudent attorney avoids surreptitious
recording); N.C. RPC 171 (1994)(lawyers are encouraged to disclose to the other lawyer that a
conversation is being tape recorded); Okla.Bar Ass’n Opinion 307 (1994)(a lawyer may secretly
record his or her conversations without the knowledge or consent of other parties to the
conversation unless the recording is unlawful or in violation of some ethical standard involving
more than simply recording); Ore.State Bar Ass’n Formal Opinion No. 1991-74 (1991) (an
attorney with one party consent may record a telephone conversation “in absence of conduct
which would reasonably lead an individual to believe that no recording would be made”); Utah
State Bar Ethics Advisory Opinion No. 96-04 (1996) (“recording conversations to which an
attorney is a party without prior disclosure to the other parties is not unethical when the act,
considered within the context of the circumstances, does not involve dishonesty, fraud, deceit or
misrepresentation”); Wis.Opinion E-94-5 (“whether the secret recording of a telephone
conversation by a lawyer involves `dishonesty, fraud, deceit or misrepresentation’ under SCR
20:8.4(c) depends upon all the circumstances operating at the time”).
15 Compare, Ass’n of the Bar of City of N.Y. Formal Opinion No. 1995-10 (1995)(secret
recording is per se unethical), with, N.Y.County Lawyer’s Ass’n Opinion No. 696 (1993)(secret
recording is not per se unethical).

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indulge with impunity.16 The lawfulness of wiretapping and electronic eavesdropping is
the subject of federal law. Recently questions have arisen as to how this applies to
attorneys.

16 “[T]he prudent lawyer should probably act as if just about everything said over the phone
while practicing law may well end up on tape. Likewise, any lawyer who undertakes to record
a conversation should take extreme care to ensure demonstrable compliance with the ethical
requirements governing this practice”, Gilbreath & Cukjati, Tape Recording of Conversations:
Ethics, Legality and Admissibility, 59 TEXAS BAR JOURNAL 951, 954 (1996).

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