NEW YORK COUNTY LAWYERS’ ASSOCIATION
Committee on Professional Ethics
QUESTION NO. 696
TOPIC: SECRET RECORDING OF TELEPHONE CONVERSATIONS
DIGEST: A LAWYER MAY SECRETLY RECORD TELEPHONE CONVERSATIONS WITH THIRD PARTIES, PROVIDED ONE PARTY TO THE CONVERSATION CONSENTS AND THE RECORDING DOES NOT VIOLATE ANY APPLICABLE LAW OR SPECIFIC ETHICAL RULE.
CODE: DR 1-102(A)(4); DR 7-102(A)(5); DR 7-104(A)(1); DR 7-109(A).
This Committee has received various inquiries from lawyers who wish to record their telephone conversations with third parties, including clients and other lawyers, without such third parties’ knowledge and also to assist clients in secretly recording their telephone conversations with third parties.
We have been asked to address whether secretly recording such telephone conversations violates any provision of the Lawyer’s Code of Professional Responsibility (1990) (the “Code”).
Numerous bar associations have opposed lawyers’ participation in secret recordings of telephone conversations on the ground that such conduct involves “dishonesty, fraud, deceit or misrepresentation” within the meaning of DR 1-102 (A) (4) . See, e.g., ABA 337 (1274); N.Y. State 328 (1974). In fact, this Committee stated that “[t]he tape recording of a telephone conversation between two attorneys, whom the Committee assumes are adversaries, by one of the participants for future use in pending prospective litigation is underhanded and deceptive and fails to satisfy the standards of Canon 22 [of the Canons of Professional Ethics (1908) requiring that all acts of a lawyer be characterized by candor and fairness], and, consequently is unethical and nonprofessional.” N.Y. County 552 (1967).
Both ABA 337 and N.Y. State 328 prohibit secret recordings unless sanctioned by express statutory or judicial authority. The ABA opinion, while citing various state ethics opinions, provides no independent reason for the prohibition. Likewise, the N.Y. State opinion provides no. independent reason for prohibiting secret recordings, but rather relies on such concepts as “elemental fairness”. We find such reliance unpersuasive for reasons articulated by the New York City ethics committee:
[W]e do not believe that ethical committees are free to determine what conduct is unfair or lacking in candor in a vacuum. Unlike more explicit ethical prohibitions, concepts like candor and fairness take their content from a host of sources–articulated and unarticulated–which presumably reflect a consensus of the bar’s or society’s judgments. Without being unduly relativistic, it is nevertheless possible that conduct which is considered unfair or even deceitful in one context may not be so considered in another.
N.Y. City 80-95 (1981).
We believe that the secret recording of a telephone conversation, where one party to the conversation has consented, cannot be deceitful per se. Since such conduct is authorized by New York Penal Law §§ 250.00 and 250.05 (McKinney 1967), a party to a telephone conversation should reasonably expect the possibility that his or her conversation may be recorded. See N.Y. State 515 (1979) (permitting lawyer to counsel client about legality of client secretly recording conversation with third party).
In fact, the rule against secret recordings has been relaxed with respect to prosecutors and defense counsel involved in criminal investigations. See, e.g., N.Y. City 80-95. Prosecutors use secret recordings pursuant to Title III of the Omnibus Crime Control Streets Act of 1968, which specifically authorizes the use of secret recordings by the federal government where one party to the conversation has consented.
As well, normative standards change over time. Advertising, for example, was once considered to be unprofessional and, hence, unethical by this Committee. After the decision of the United States Supreme Court in Bates v. State Bar, 433 U.S. 350 (1977), however, most of the ethical strictures against advertising were removed. Similarly, former pronouncements that secret recordings by lawyers are inconsistent with standards of candor and fairness are no longer viable in today’s day and age. Perhaps, in the past, secret recordings were considered malevolent because extraordinary steps and elaborate devices were required to accomplish such recordings. Today, recording a telephone conversation may be accomplished by the touch of a button, and we do not believe that such an act, in and of itself, is unethical.
It should be noted that there may be circumstances in which a secret recording would violate specific provisions of the Code and thus would be ethically improper. DR 7-102(A)(5) provides, for example, that a lawyer may not “[k]nowingly make a false statement of law or fact.” Accordingly, if a lawyer is asked by the other party to the conversation whether the discussion is being recorded, the lawyer may not falsely assert that the conversation is not being recorded. Similarly, DR 2- 102(A)(4) states that a lawyer shall not engage in conduct involving misrepresentation. Thus, a lawyer may not use recorded statements out of context or in an otherwise misleading way.
As well, DR 7-104(A)(1) states that a lawyer shall not “[c]ommunicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.” DR 7-104(A)(1) requires a lawyer to make reasonable inquiry to determine whether a person with whom he wishes to communicate is represented by counsel in the matter. See, e.g., N.Y. State 607 (1990). It would be ethically improper under this disciplinary rule for an attorney to record or cause to be recorded any conversation with an adverse party or witness represented by counsel without that party’s consent or prior knowledge.
We caution that the practice of secretly recording telephone conversations raises various practical concerns. For example, if it becomes commonplace for lawyers to record conversations with other lawyers, lawyers may become overly guarded in their oral communications, thus impeding the lawyering process. Lawyers may also incur unnecessary costs to clients if tapes are to be transcribed. As well, a client who discovers, after the fact, that his or her lawyer recorded their telephone conversation may feel betrayed and lose confidence in his or her lawyer. Finally, by recording a telephone conversation with a client or between a client and a third party, a lawyer may be creating discoverable evidence. This may result in an accompanying duty not to suppress such evidence. See DR 7- 109(A).
These and other practical concerns may rise to the level of ethical problems in light of a lawyer’s duty to act competently, DR 6-101(A), and not to intentionally prejudice or damage a client during the course of the professional relationship. DR 7-101(A)(3). Thus, a lawyer should carefully consider the practical effect of secretly recording a telephone conversation before proceeding.
Subject to the caveats described above, a lawyer may secretly record telephone conversations with third parties, including other lawyers, provided one party to the conversation has consented and provided that such recording does not violate any applicable law or a specific ethical rule.
June 21, 1993