Formal Opinion 112: Surreptitious Recording of Conversations or Statements

• Publication year: 2003
• Pages: 55

32 Colo.Law. 55 Colorado Lawyer 2003.

2003, November, Pg. 55. Formal Opinion 112: Surreptitious Recording of Conversations or Statements

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55

Vol. 32, No. 11, Pg. 55

The Colorado Lawyer
November 2003
Vol. 32, No. 11 [Page 55]

Departments
CBA Ethics Committee Formal Opinions
Formal Opinion 112: Surreptitious Recording of Conversations or Statements

Formal Opinion 22: Recording Conversations

Effective July 19, 2003, the Colorado Bar Association Ethics Committee has withdrawn Formal Opinion 22 (adopted January 26, 1962)

Formal Opinion 112: Surreptitious Recording of
Conversations or Statements

Adopted July 19, 2003

SYLLABUS

Surreptitious recording of a conversation or statement occurs where one party to the conversation (the recording party) has consented to the recordation but at least one other party to the conversation or statement is not aware of the recording Because surreptitious recording of conversations or statements by an attorney may involve an element of trickery or deceit, it is generally improper for an attorney to engage in surreptitious recording even if the recording is legal under state law. For the same reason, a lawyer generally may not direct or even authorize an agent to surreptitiously record conversations, and may not use the "fruit" of such improper recordings. However, where a client lawfully and independently records conversations, the lawyer is not required to advise the client to cease its recording, nor to decline to use the lawfully- and independently-obtained recording

The Committee believes that, assuming that relevant law does not prohibit the recording,1 there are two categories of circumstances in which attorneys generally should be ethically permitted to engage in surreptitious recording or to direct surreptitious recording by another: (a) in connection with actual or potential criminal matters, for the purpose of gathering admissible evidence; and (b) in matters unrelated to a lawyer's representation of a client or the practice of law, but instead related exclusively to the lawyer's private life. The bases for the Committee's recognition of a "criminal law exception" are the widespread historical practice of surreptitious recording in criminal matters, coupled with the Committee's belief that attorney involvement in the process will best protect the rights of criminal defendants. The Committee recognizes a "private conduct exception" because persons dealing with a lawyer

exclusively in his or her private capacity have diminished expectations of privacy in connection with those conversations; therefore, in the opinion of the Committee, purely private surreptitious recording is not ordinarily deceitful. However, the Colorado Supreme Court has not recognized either of these exceptions to the general prohibition against surreptitious recording by lawyers.

ISSUES

Under what circumstances, if any, may an attorney surreptitiously record or direct another to surreptitiously record an in-person or telephone conversation with another person? Do the ethics rules recognize distinctions between surreptitious recording by attorneys in civil and criminal matters? Do the rules recognize distinctions between attorneys who surreptitiously record conversations in the course of representing clients or otherwise acting in a professional capacity, versus attorneys acting in a purely private capacity?

This opinion does not address non-consensual recording, i.e., wiretapping, in which a non-party to the conversation engages in surreptitious recording. It also does not address the circumstances, if any, in which lawyers may use false pretenses to gather evidence, for example in investigating claims of housing discrimination and trademark infringement.

EXISTING LEGAL AUTHORITY

The Committee does not write on a clean slate. In its Formal Opinion 22 ("CBA 22"), originally issued on January 26, 1962, the Committee considered the broad question of whether "[a] lawyer, by means of a mechanical or electronic device, [may] record conversations with and statements by other persons." The Committee resolved the issue under the then-applicable Colorado Canons of Professional Ethics (the predecessor to the Colorado Code of Professional Responsibility ("Colorado Code") that, in turn, preceded the Colorado Rules of Professional Conduct ("Colorado Rules")). The Committee concluded:

One of the principal purposes of the Canons of Ethics is to increase public confidence in the legal profession. This end can be achieved only if individual members of the Bar earn a reputation as men of honor, integrity and fair dealing. Conversely, every deceptive practice and resort to artifice by an attorney must necessarily demean the Bar as a whole in addition to the particular attorney involved.

. . .

[W]e believe that the large majority of persons would not suspect that a conversation with an attorney was being surreptitiously recorded. Moreover, one reason for an attorney intentionally not disclosing that a particular conversation or statement is being recorded may be a belief that the person whose conversation is being recorded would choose his words more carefully, or speak less freely, or not at all, if such knowledge were imparted to him.

[T]here is inherent in the undisclosed use of a recording device under these circumstances an element of deception, artifice or trickery which falls below the standard of candor and fairness which all attorneys are bound to uphold.

In 1974, the American Bar Association ("ABA") reached a similar result in its Formal Opinion 337 ("ABA 337"), concluding that under the ABA Model Code of Professional Responsibility, with a possible exception for conduct by law enforcement officials, a lawyer may not engage in undisclosed recording of any conversation.

The Colorado Supreme Court relied on CBA 22 and ABA 337 in People v. Selby, 198 Colo. 386, 606 P.2d 45 (1979), an attorney disciplinary case, as support for the following broad statements: "A lawyer may not secretly record any conversation he has with another lawyer or person. Candor is required between attorneys and judges. Surreptitious recording suggests trickery and deceit." 606 P.2d at 47 Selby involved a criminal defense attorney who surreptitiously recorded an in-chambers conference with the trial...