To (secretly) tape or not to tape

• Author: David L. Hudson Jr.
• Pages: 26-27

IS RECORDING OTHERS LEGAL, AND IS IT ETHICAL?

By David L. Hudson Jr.

“What kind of a law yer would tape

a client?” tweeted President Dona ld J.

Trump upon learning his former coun-

sel Michael Cohen had taped a 2016

conversation between the two of t hem

that dealt with ma ny subjects, includ-

ing payments to a former Playboy

model who alleged a past sexu al liai-

son with the president.

In a dierent tweet, Trump wondered, “Even more

inconceivable that a lawyer would tape a cl ient—totally

unheard of & perhaps illega l.”

A lawyer taping a client may be illega l in some circum-

stances, but it cert ainly is not unheard of. In fact, law yers

have surreptitiously tape-re corded conversations with

witnesses, potenti al party opponents and clients.

Whether a secret recordi ng is illegal and unethical

depends on where it takes place and why.

The first question to addres s is whether state wiretap-

ping laws have been violated and whether the at torney

secretly recorded the conversat ion in a state with a one-

party consent or two -party consent law. In many states,

a person can secretly r ecord a conversation as long as one

party knows of it , and that one party can be the recorder.

These are called “one-par ty consent” states. Other state s

are two-par ty or “all-party consent” state s. In these juris-

dictions, all par ties to the conversation must know a

recording is tak ing place.

State laws var y quite dramatically in this a rea,

explains Har tford, Wisconsin-based attorney G ary L.

Wickert.

“Currently, 38 states and the Dis trict of Columbia have

adopted a ‘one-party ’ consent requirement. Nevada has

a one-party consent law, but Nevada’s Supreme Court

has interpreted it a s an all-party consent law,” Wickert

notes. “Eleven states requ ire the consent of everybody

involved in a conv ersation or phone call bef ore the con-

versation can be recorded. Those s tates are California,

Delaware, Florida, Il linois, Maryland, Massachuset ts,

Montana, Nevada, New Ha mpshire, Pennsylvania and

Washington.” (Vermont currently has no statute.)

But even if secretly recording a nother person is legal—

as it would be in a one-part y state—attorneys must

also consider whether such recordi ngs are ethical. ABA

Model Rule of Professional Conduct 8.4(c) states that it

is professional misconduct for an att orney to engage in

conduct “involv ing dishonesty, fraud, deceit or misrepre-

sentation.” Fur thermore, a paramou nt duty undergirding

professional responsibility i s that attorneys must follow a

duty of loyalty to their clients .

“In all-part y consent states, it would generally be

unlawful a s well as unethical for an attorney t o secretly

tape a client,” says Carol Bast, a profe ssor of legal studies

at the University of Central Florida . “However, even some

all-party c onsent states make an exception that permit s

secret taping to gather ev idence of criminal activit y.”

A TALE OF TWO OPINIONS

In 1974, the ABA Standing C ommittee on Ethics and

Professional Responsibilit y issued Formal Opinion 337.

The committee concluded that “no law yer should record

any conversat ion, whether by tapes or ot her electronic

device, without the cons ent or prior knowledge of all par-

ties to the conversation.” The only exception was for the

U.S. attorney general or stat e or local prosecutors who

“might ethically ma ke and use secret recordings if act ing

within str ict statutory limitations conform ing to consti-

tutional requirements.”

However, in 2001, the ABA changed its position.

Formal Opinion 01-422 reflected that t he issue often

depends on state wiret apping laws.

The opinion noted that in those state s that prohibit

recordings without the cons ent of all parties, a lawyer

could be subject to liability for se cretly recording a client.

“A lawyer who records a conversation in the practice of

law in violation of such a state stat ute likely has violated

Model Rule 8.4(b) or 8.4(c) or both,” the opinion reads.

Thus, Opinion 01-422 cautioned that “a lawyer con-

templating noncon sensual recordi ng of a conversation

should, therefore, take ca re to ensure that he is informed

of the relevant law of the jurisdict ion in which the record-

ing occurs.”

And even if a surreptit ious recording does not violate

state law, it may still be unethica l. In those instances, the

committee was d ivided on whether such recordings vio-

lated the Model Rules.

But where a client was concerned, the comm ittee was

“unanimous, however, in concluding that it is al most

always advisable for a law yer to inform a client that a

conversation is being or may be recorded before record-

ing such a convers ation.”

However, the committee did not go so far as t o say that

all secret record ings of clients were unethical. Instead ,

the opinion says it is not unethical for law yers to secretly

tape clients in two situat ions. The first is when “the law-

yer has no reason to believe t he client might object,” and

the second is when “exceptional circum stances” exist.

TO (SECRETLY) TAPE

OR NOT TO TAPE

SHUTTERSTOCK

Ethics

26 || ABA JOURNAL JANUARY-FEBRUARY 2019

Practice