Attorney Private Eyes

Ethical Implications of a Private Attorney’s Decision to Surreptitiously Record Conversations

Attorneys’ surreptitious recording of conversations with clients, adverse parties, witnesses, judges, and other attorneys is a complicated and controversial ethical issue. It pits the convenience and security of individual lawyers against the integrity of the legal profession. In 1974, ABA Formal Opinion 337 strongly condemned the act of surreptitious recording by nongovernmental attorneys as unethical. Several states followed Formal Opinion 337’s directive, allowing recordings only in limited circumstances. Other states chose not to strictly follow Formal Opinion 337’s prohibition, but rather to examine a broad array of factors in determining whether or not an attorney’s secret recording rose to the level of an ethical violation under the circumstances.In 2001, the ABA issued Formal Opinion 01-422, withdrawing Formal Opinion 337, the basis for many jurisdictions’ recording policies. Opinion 01-422 held that the act of surreptitiously yet lawfully recording a conversation is not inherently deceitful. Under Opinion 01-422, as long as local laws permit nonconsensual recording, the Model Rules generally will not be violated by recording conversations without the consent of other parties. Opinion 01-422 provides, however, that a law-yer cannot falsely state that he is not recording a conversation, and recommends against covertly recording a client.This note analyzes different jurisdictions’ approaches to the nonconsensual recording problem. These approaches range from the general embodiment of Formal Opinion 337’s strict recording prohibition, in jurisdictions such as Colorado and South Carolina, to the broad “context of the circumstances” approach followed by Mississippi and similar approaches in Maine and Wisconsin ethics opinions. In addition to comparing the nuances of these jurisdictions, this note addresses the possible ramifications of Opinion 01-422. The author argues that Opinion 01-422 may be a step in the wrong direction, and may not sufficiently safeguard the integrity of the legal profession. Therefore, the author favors Formal Opinion 337’s recording prohibition, allowing only a narrow exception for an attorney’s recordings made under the guidance of law enforcement personnel in an ongoing criminal investigation.

The full text of this Note is available to download as a PDF.