1983-183

RECONSIDERATION OF SURREPTIOUS TAPE RECORDINGS OPINION
[RO-83-183 PUBLISHED IN MAY, 1984, ALABAMA LAWYER]

QUESTION:
“Is it ethical for an attorney or an investigator or other person acting on behalf of an attorney to make recordings of conversations with clients, other attorneys, witnesses or others without prior knowledge and consent of all parties to the conversation?”

(Note: The foregoing question was answered in an opinion heretofore published in the May, 1984, Alabama Lawyer as follows:

It is unethical for an attorney or an investigator or other persons acting on behalf of an attorney to make recordings of conversations with any persons, be they clients, other attorneys, witnesses or others without prior knowledge and consent of all parties to the conversation.)

MODIFICATION OF ANSWER ON RECONSIDERATION:
Absent any element of dishonesty, fraud, deceit, or misrepresentation, it is not unethical, per se, for an attorney who is a party to a conversation with any persons, be they clients, other attorneys, witnesses or others to make a recording of the conversations without prior knowledge and consent of all the parties thereto.

DISCUSSION:
“In issuing the opinion heretofore published in the May, 1984, Alabama Lawyer as a precedent we relied primarily upon Formal Opinion 337 (1974) of the American Bar Association Committee on Ethics and Professional Responsibility. Upon reconsideration we conclude that there is no provision of the Code of Professional Responsibility of the Alabama State Bar which directly precludes an attorney who is one of the conversants from recording conversations as described herein. One member of the Disciplinary Commission respectfully dissents and is of the opinion that an attorney’s recording of such conversations without the knowledge and consent of all parties thereto in and of itself constitutes “deceit” [DR 1-102(A)(4)]. In issuing this modification, the Disciplinary Commission expresses its intent that this opinion is to be strictly construed.

RO-83-l83 IS SET OUT BELOW FOR INFORMATIONAL PURPOSES ONLY

RO-83-183

QUESTION:
I represent a number of civil litigants. Some of these cases involve such matters as automobile accidents, industrial accidents, etc. As you know, it is necessary to interview witnesses and potential defendants who are not at the time I contact them represented by counsel. Occasionally I retain an investigator to interview these witnesses and potential
defendants not represented by counsel.

The following ethical questions have arisen in the course of my handling these cases:

1. Whether it is permissible under the Code of Professional Responsibility for an attorney who is interviewing a witness in a civil case to tape record the conversation without providing notice to the potential witness;
2. Whether it is permissible under the Code of Professional Responsibility for an attorney who is interviewing a potential defendant not represented by counsel in a civil case to tape record the conversation without providing notice to the potential defendant not represented by counsel;
3. Whether it is permissible under the Code of Professional Responsibility for an attorney who is interviewing a potential defendant who is insured in a civil case to tape record the conversation without providing notice to the potential defendant who is insured;
4. Whether it is permissible under the Code of Professional Responsibility for an investigator retained by me who is interviewing a witness in a civil case to tape record the conversation without providing notice to the potential witness;
5. Whether it is permissible under the Code of Professional Responsibility for an investigator retained by me who is interviewing a potential defendant not represented by counsel in a civil case to tape record the conversation without providing notice to the potential defendant not represented by counsel;
6. Whether it is permissible under the Code of Professional Responsibility for an investigator retained by me who is interviewing a potential defendant who is insured in a civil case to tape record the conversation without providing notice to the potential defendant who is insured.

ANSWER:
It would not be ethical for you or your investigator to tape record a conversation with a witness or with a potential defendant, whether insured or otherwise, without the consent or prior knowledge of all parties to the conversation.

DISCUSSION:
Disciplinary Rule 1-102(A)(4) provides:

“(A) A lawyer shall not:

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(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, nor be guilty of willful misconduct.”

Disciplinary Rule 1-102(A)(6) provides:

“(A) A lawyer shall not:

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(6)Engage in any other conduct that adversely reflects on his fitness to practice law.”

Canon 9 provides:

“A Lawyer should Avoid Even the Appearance of Professional Impropriety.”

Ethical Consideration 9-2 in part provides:

“When explicit ethical guidance does not exist; a lawyer should determine his conduct by acting in a manner that promotes public confidences in the integrity and efficiency of the legal system and the legal profession.”

In Formal Opinion 150 (1936) the American Bar Association Committee on Ethics and Professional Responsibility was called upon to interpret Canon 22, Canons of Professional Responsibility of the American Bar Association which in part provides:

“The conduct of the lawyer before the Court and with other lawyers should be characterized by candor and fairness.

It is unprofessional and dishonorable to deal other than candidly with the facts in taking the statements of witnesses, in drawing affidavits and other documents, and in the presentation of causes.

The Committee held that a conversation between a defendant in custody and his attorney is a confidential communication, and a prosecuting attorney may not ethically use a recording of such conversation without the knowledge and consent of the parties thereto in evidence in the prosecution of the defendant although the conversation might be admissible in evidence as a matter of law.

In Informal Opinion 1008 (1967) the American Bar Association Committee on Ethics and Professional Responsibility, again
interpreting Old Canon 22, held that it is unethical for a lawyer to make a recording of a conversation with his client without the client’s knowledge or without warning the client. In the opinion the Committee stated:

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“Is it appropriate for a lawyer to make a recording of a conversation with a client without the client’s knowledge or without warning the client even though this conversation would not be disclosed to outsiders in violation of the attorney-client privilege and would only be disclosed to outsiders as an exception to the privilege?

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Canon 22 on candor and fairness dealing principally with candor to the court and to other lawyers has been interpreted by this committee to impose an obligation upon the lawyer to be candid with his client as well.

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The making of such a record would be a violation of the obligation of candor and fairness. Therefore, we think that there is an obligation on the lawyer to be candid and fair with his client when he is making a verbatim record of the conversation, and not to make such recording without such disclosure.”

In Informal Opinion 1009 (1967) the American Bar Association Committee on Ethics and Professional Responsibility, again
interpreting Old Canon 22, held that it is unethical for a lawyer to record a telephone conversation with another lawyer without advance disclosure and warning to such other lawyer. The Committee cites opinions of the Michigan Ethics Committee and the New York City Ethics Committee.

In Formal Opinion 337 (1974) the American Bar Association Committee on Ethics and Professional Responsibility held that it is unethical for an attorney to make recordings of conversations with any persons, be they clients, other attorneys, witnesses or others without prior knowledge and consent of all parties. The Committee relied primarily upon Canon 9 and Disciplinary Rule 1-102(A)(4) of the present Code of Professional Responsibility of the American Bar Association. The Committee cited Informal Opinion 1008 and Informal Opinion 1009 and observed:

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“So far as clients and other attorneys are concerned, the prior Informal Opinions make the conclusion clear. Attorneys must not make recordings without the consent of these parties to the conversation.

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While the law is not clear or uniform as to recording by lawyers of conversations of ‘other persons,’ it is difficult to make a distinction in principle. If undisclosed recording is unethical when the party is a client or a fellow lawyer, should it not be unethical if the recorded person is a layperson? Certainly the layperson will not be likely to perceive the ground for distinction?

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DR 1-102(A)(4) of the Code of Professional Responsibility states that, ‘A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.’ This disciplinary rule is substantially equivalent to, but somewhat broader than, Canon 22 of the former Canons of Ethics which imposed on an attorney an obligation to be candid and fair ‘before the Court and with other lawyers.’

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The conduct proscribed in DR 1-102(A)(4), i.e., conduct which involves dishonesty, fraud, deceit or misrepresentation in the view of the Committee clearly encompasses the making of recordings without the consent of all parties.”

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In Informal Opinion 1320 (1975) the American Bar Association Committee on Ethics and Professional Responsibility held
that an attorney could not permit his investigator to surreptitiously record a conversation with a witness without the knowledge and consent of the witness.

Finally, the American Bar Association Committee on Ethics and Professional Responsibility in Informal Opinion 1407 (1978) held that the Chief Investigator for the Disciplinary Board of a State Supreme Court could not ethically record a conversation between an attorney and his client without the knowledge and consent of all parties to the conversation.

The opinions of state and local ethics committees appear to be in virtually unanimous agreement with the foregoing opinions of the American Bar Association Committee on Ethics and Professional Responsibility. But see: Texas Opinion 84, 16 Texas Bar Journal 701 (1953).

In view of the foregoing authorities and the reasons set forth therein, we conclude that you could not record the conversations described in your request for opinion without knowledge and consent of all parties to the conversation.

From the foregoing, we do not imply that there may not be some rare exceptions to the general rule announced herein. As an example, the actions of a prosecuting attorney and his investigators in recording conversations without the consent of the parties thereto in uncovering criminal activities for the protection of the public might not be deemed unethical.

WHMjr/vf

1-23-84