IV. Secret Recording

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

IV. Secret Recording

Investigators working for lawyers often secretly record conversations with witnesses in the course of their investigations. There are also situations where lawyers surreptitiously record conversations, as when they speak with witnesses whom they reasonably believe may later change their stories. Although many people find surreptitious recording to be offensive, that does not make it unethical in any general sense. The fact that some courts and lawyers find surreptitious recording distasteful does not mean that it involves dishonesty, fraud, deceit, or misrepresentation.²⁹⁹ Indeed, a lawyer's "mere act of secretly but lawfully recording a conversation" is not inherently dishonest or deceitful.³⁰⁰

Most ethical complications stem from the manner in which lawyers use surreptitious recordings, not the act of recording itself.³⁰¹ Surreptitious recording is often accomplished in circumstances characterized by deceit and deception, and the surrounding circumstances often prejudice courts against the otherwise lawful act of taping.³⁰² If lawyers engage in surreptitious taping for improper purposes, the fact that the taping itself was legal will not provide much defense to professional discipline.³⁰³

Many states permit surreptitious taping as long as one party to the conversation, including the recording party, consents.³⁰⁴ In states with permissive eavesdropping or wiretapping laws where only the recording party need consent, lawyers should be able to secretly record conversations without violating ethics rules prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation.³⁰⁵ This is true regardless of whether the attorney is a private practitioner or a prosecutor.³⁰⁶

Although a lawyer may record a conversation without the other person's knowledge or consent, the lawyer cannot falsely deny that the conversation is being recorded.³⁰⁷ In Mississippi Bar v. Attorney ST,³⁰⁸ for example, the court held that the attorney violated Rules 4.1 and 8.4(c) when, in the course of surreptitiously recording a telephone call, he answered "no" when asked if he was recording the conversation.³⁰⁹ Although the attorney was taping the conversation to protect his client, and his actions were up to that point justifiable and ethical, the court decided that he "stepped over the line" when he "blatantly denied, when asked" whether he was taping the conversation.³¹⁰ As the court explained:

An attorney is not a private detective or a secret agent; he is not acting as an undercover police officer; rather, he is first and foremost an attorney, and his truthfulness must be above reproach. When asked point-blank whether he is mechanically reproducing a conversation, his answer must be truthful. To respond otherwise vitiates all rules of professional conduct.³¹¹

The two lawyers in In re PRB Docket No. 2007-046³¹² were representing the defendant in a criminal trial. During trial, a potential witness contacted them and claimed to have evidence of their client's innocence. They quickly arranged a telephone interview of the witness that they planned to record. During the telephone interview, the witness asked the lawyers if they were recording the call.³¹³ One lawyer responded "no"; the other attempted to distract the witness by suggesting that they were on a speaker phone.³¹⁴ The witness later filed disciplinary charges against the lawyers. The disciplinary charges were premised solely on the lawyers' conduct in misleading the witness, rather than the tape recording itself.³¹⁵

The Vermont Supreme Court found that both lawyers violated Rule 4.1 by knowingly making false statements about the recording to the witness. The first lawyer violated Rule 4.1 by stating that she was not recording the call when, in fact, she was.³¹⁶ The second lawyer violated Rule 4.1 through her misleading statement about using a speaker phone and by not correcting or disagreeing with the first lawyer's negative answer.³¹⁷ The court concluded that the lawyers did not violate Rule 8.4(c), however, because their actions did not reflect adversely on their fitness to practice law.³¹⁸ As for discipline, the court reprimanded the lawyers.

In some states, recording a conversation without the consent of all parties is prohibited, although legitimate law enforcement activities are usually excepted. In these states, attorneys who surreptitiously record conversations in civil matters violate Rule 8.4(c).³¹⁹ They may also violate other rules,³²⁰ and may face civil and criminal liability. In still other states, surreptitious taping by private attorneys, although "technically legal," may nonetheless be "professionally improper."³²¹ Courts in these states view surreptitious taping by private lawyers as being inconsistent with general standards of candor and fairness.³²²

In United States v. Smallwood,³²³ for example, investigators working for two criminal defense lawyers secretly recorded a prosecution witness, a jailhouse informant who had told his cellmates that he hoped to trade his testimony for charging or sentencing considerations, or other favors. Although observing that Virginia law permitted surreptitious taping with the consent of one party to the conversation, the court noted that Virginia law also embraced the "sensible conclusion" that such conduct is nonetheless unethical as an underhanded practice designed to ensnare an opponent, and violates the Rule 8.4(c) prohibition on conduct involving dishonesty, fraud, deceit, or misrepresentation.³²⁴ The court believed that for a lawyer to record or to advise others to record a conversation without the other party's consent offends the standards of candor and fairness that characterize professionalism.³²⁵ This is true regardless of whether lawyers make the recording themselves or encourage or direct others, such as investigators, to do so.³²⁶ Fortunately for the lawyers and the investigators in Smallwood, the court recognized that they did not knowingly do anything improper and let them off with a warning.

The view expressed in Smallwood is often difficult to understand. In Smallwood, the investigators' conduct, and by extension the defense lawyers' conduct, was plainly legal. The investigators were recording the witness's call as part of a well-founded investigation into his intended perjury in a looming criminal trial. Had the defense lawyers advised the witness's lawyer of their intent to record his client, he likely would have prohibited it and alerted his client. No other potential means of impeaching the witness would be as effective as capturing his plans or alternative testimony on tape. Indeed, the Smallwood court permitted the defense lawyers to impeach the witness with his statements about selling information to or about other inmates, but declined to admit the tape or transcript of the call into evidence when the witness's lawyer and prosecutor objected.³²⁷ The defense lawyers' duties of competence and diligence arguably compelled them to lawfully ensnare the adverse witness who would send their clients to federal prison for decades. Long story short, it is reasonable to argue that lawful surreptitious taping is not the sort of conduct Rule 8.4(c) is intended to prohibit.³²⁸

In addition to covertly recording conversations with witnesses and other third persons, lawyers occasionally record conversations with judges without the judge's knowledge or permission. This is always a terrible idea.³²⁹ It does not matter whether the lawyer records the conversation herself or whether she has someone else (such as a client) do it; both tactics are equally impermissible and offensive. Nor does it matter that the jurisdiction permits surreptitious recording with the consent of one party to the conversation. A lawyer's duty of candor...