Our dirty little secret recording: a history and critique of ethical rules regarding lawyers secretly recording conversations.

AuthorJones, Doug

    What do Scott Peterson's girlfriend, Lynda Tripp, Richard Nixon, and Jeanine Pirro all have in common? All were participants in scandals which involved the secret recording of conversations. (1) The Pirro scandal is the most recent and interesting example. In September 2006, Ms. Pirro, a former District Attorney and Republican candidate for New York State Attorney General, called a press conference to deny that she illegally taped conversations between her husband and his mistress. (2) At the press conference, Ms. Pirro admitted that she discussed the idea with Bernard Kerik, a former New York City Police Commissioner. (3)

    The Pirro story received attention because of its adulterous sub-text and the public notice of legal and ethical implications of a lawyer who secretly recorded a conversation. In general, the idea of secretly recording conversations leaves a sour taste because it is seemingly underhanded, cowardly and deceitful. Further, secret recordings trample over the concept of privacy, which society holds dear. Indeed, this disdainful view of the practice has been codified and many forms of secret recording are now illegal. (4)

    For almost twenty-seven years, the American Bar Association Standing Committee on Ethics and Professional Responsibility ("the ABA Ethics Committee" or "The Committee") held that it is per se unethical for a lawyer to secretly record a conversation. (5) However, in 2001 the ABA Ethics Committee changed course. The Committee abolished the per se rule in favor of a rule that allows a lawyer to record a conversation secretly but prohibits a lawyer from secretly recording a conversation when the recording is accompanied by other unethical behavior. (6) This article theorizes that abandoning the per se ethical prohibition against the secret recording of conversations by lawyers was a mistake. A lawyer who secretly records a conversation is deceitful and dishonest, a violation of Model Rule 8.4's prohibition against such behavior. (7) Additionally, a strong argument can be made that secret recordings violate Model Rule 4.1, which forbids false statements even when there is no false denial that a conversation is being recorded. (8)

    Part II will discuss the legal and historical background of secret recording. This section will enumerate its potential pros and cons, examine pertinent provisions in the Model Rules, and examine the approaches to the issue taken by New York State Bar associations. Part III will analyze the old per se unethical rule and the rationale behind it. Part IV will discuss the new rule, which permits secret recording unless additional unethical behavior accompanies it. This section will also examine the rationale of the rule change. Finally, and most importantly, Part V will critique and argue against the new rule. This section calls for a reinstatement of the old rule or, in the alternative, the promulgation of a new rule that prohibits lawyers from secretly recording conversations while allowing for limited, specifically enumerated, and strictly construed safe harbors.


    Secretly taping conversations is not uncommon. Scott Peterson's girlfriend, Amber Frey, secretly taped him. (9) Linda Tripp secretly recorded her conversations with Monica Lewinsky. (10) Richard Nixon apparently taped his conversations with everyone in the Oval Office. (11) Given the prevalence of the practice of secret recording, it is not difficult to glean the motivations behind it. However, the issue of secret recording by lawyers is complex, and many benefits that derive from it come at a high cost.

    From a systemic legal perspective, secret recording can be a useful tool. (12) Recording a witness may prevent the loss of evidence due to memory failure or the conscious or unconscious distortion of information. (13) Further, the recording may expose later testimony as unreliable or perjured, or it may discourage a party from giving such testimony in the first place. (14) Law enforcement attorneys may find secret recordings useful when pursuing a criminal investigation. To these ends, secret taping could improve the legal system. It could result in the accurate preservation of more information, which is helpful when resolving factual issues, and it could increase the reliability of witness testimony. (15) The flip side of this argument is that secret taping by lawyers is deceptive and reflects unfavorably on the profession. (16)

    From the perspective of an attorney, secret recording has both benefits and costs. An attorney can benefit from documenting exactly what someone says when he is unaware of recording. (17) For example, a defense lawyer could use a secretly taped witness inter view to prove that the lawyer did not intimidate, coerce, or bribe the witness. (18) In this way, the secret recording could protect a lawyer from false allegations of misconduct. (19) A lawyer could openly tape a conversation or have a third party present, however, such arrangements could lead to a witness guarding his statements or refusing to talk to the lawyer. (20) If a lawyer secretly tapes too often, he could damage his reputation. At worst, others will refuse to deal with him. At best, the act of secretly taping could lose its significance because persons dealing with the lawyer will assume they are being taped. (21)

    From the client's perspective, secret taping also has both benefits and costs. The client, like the lawyer and the entire legal system, may benefit from the increase in accurate information inherent with secret recording. (22) The risk to the client is that recorded material, if unprivileged, may be discoverable. (23) Under Rule 26.2 of the Federal Rules of Criminal Procedure and similar state rules, the defense must turn over prior recorded statements by its witnesses to the prosecution for use in impeachment. (24) If a recording contains impeachment material and is used against a witness testifying for the client, the recording would be detrimental to the client.

    1. Legal Implications of Secret Recording

      Most states draw a distinction between "no party consent taping" (secret taping where no party to the conversation consents to the taping) and "one party consent taping" (secret taping where at least one party, usually the recorder, consents to the taping). There is also an important distinction between the ethical and legal nature of a lawyer secretly taping a conversation. This article is concerned with the ethical implications of secret recording. However, discussing the legal nature is useful because many ethical rules hinge on whether the recording was made legally.

      Federal law and the law of more than two thirds of the states, including New York, have statutes that permit one party consent taping. (25) No party consent taping is illegal under Federal statutes and most state statutes, including New York. (26) Also, under Federal law, a legally recorded conversation may be admissible into evidence for impeachment or under an applicable hearsay exception. (27) If a conversation is illegally recorded, it is inadmissible. (28)

    2. Relevant Ethical Standards and Rules

      Ethics codes, like the ABA Model Rules of Professional Conduct, do not specifically address secret taping. (29) However, such taping does implicate a number of other ethical rules. Were a lawyer to represent falsely that he was not recording a conversation, his conduct would run afoul of Model Rule 4.1's prohibition against making false statements. (30) Rules dealing with duties to clients and third parties may also be relevant. Model Rule 4.4 covers respect for the rights of third parties. This rule prohibits conduct that has no substantial purpose other than to embarrass, delay or burden a third person, and it prohibits methods of obtaining evidence that violate a third party's rights. (31) Accordingly, so long as a secret recording has a reasonable purpose and does not violate the rights of the subject of the recording, this rule will not prohibit it. (32)

      In terms of secretly recording a client, whatever fiduciary duty or duties of candor a lawyer owes a client may be sufficient to bar his secretly recording a client. (33) The requirement of candor to the tribunal, currently found in Model Rule 3.3, has also been interpreted to require candor to clients and other lawyers. (34) In the past, the ABA Ethics Committee used the duty of candor to determine that secretly recording a client is unethical for a lawyer. (35)

      More importantly, Model Rule 8.4 states that it is "professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." (36) Model Code DR 1-102(A)(4) sets forth an almost identical prohibition. (37) The relevant question becomes whether secret recording is, in any way, dishonest, fraudulent, deceitful, or misrepresentative. (38) Up until 2001, the ABA thought that it was. (39)

    3. The New York Approach

      Before discussing the ABA Ethics Committee's approach to the issue and then examining the Committee's rule change, it is illustrative to examine how state bar associations have handled the issue. This article examines New York's approach.

      In New York, different bar associations have reached different conclusions regarding the ethical nature of secret recording. This disparity has lead to a confusing state of affairs. Commentators attribute the inconsistencies among various legal and ethical authorities to the tension between the potential benefits and the dangers. On one hand, the client, lawyer and legal system could benefit; but, on the other hand, the bar associations are concerned with candor and the image of the legal profession.

      In New York, no-party consent taping is illegal. (40) The New York State Bar Association Committee on Professional Ethics has held that "illegal conduct is, of course, unethical with rare exceptions of inadvertent violations involving no moral turpitude." (41)...

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