Below are links to opinions and authorities on whether it is ethical for an attorney to record a telephone or in-person conversation, and the like. The ABA's original opinion, Number 337 (1974), is not online but holds that recording without consent is conduct involving fraud, dishonesty or misrepresentation. That opinion is the foundation of virtually all of these later ones. The Restatement in a comment rejects the ABA's opinion and relies on New York opinions that have been heavily criticized. See Restatement (Third) Law Governing Lawyers Section 106, cmt. b (American Law Institute 2000).The ABA in late 2001 reversed its original opinion and held that recording is ethical. See ABA Formal Eth. Op. 01-422 (2001). The opinion holds that "the mere act of secretly but lawfully recording a conversation inherently is not deceitful." But, it goes on to say that many states have substantive law making it a crime to record without consent of all parties, and, as noted below, many states disagree with the ABA's opinion. The committee split on whether a lawyer could record his own client without consent. Go figure. See also Anderson v. Hale, __ F.Supp.2d__ (N.D. Ill. No. 00 c 2021 Apr. 23, 2001) (work product protection destroyed over tapes surreptitiously recorded with witnesses since "people who speak to attorneys in civil cases reasonably expect that they are not being recorded.")
Texas.
There is a Texas ethics opinion saying it is unethical to record.. Federal courts have held that it is unethical to record. See, e.g., Chapman & Cole v. Itel Container Int'l., B.V., 865 F.2d 676, 686 (5th Cir. 1989) ("the clandestine taping of a telephone conversation imlicitly waives the protection of the work product doctrine because it violates the American Bar Association's Model Rules of Professional Conduct."); Smith v. WNA Carthage, L.L.C.,200 F.R.D. 576, 578 (E.D. Tex. 2001) ("an attorney is ethically prohibited from making clandestine recordings"); Broussard v. Oryx Energy Co., 110 F.Supp.2d 532, 536 n. 4 (E.D. Tex. 2000) (striking summary judgment evidence the transcript of a call because the lawyer had not indicated it had been recorded). However, there is a 1997 letter, purportedly from the General Counsel of the Texas State Bar, that disagrees with the Texas ethics opinions and states that lawyers will not be subject to grievance for violating it. It appeared in "Voice" magazine. Stating that the original appeared on State Bar of Texas letterhead, the letter reads:February 4, 1997Chuck Lanehart Chappell & Lanehart, P.C. 1217 Avenue K Lubbock, Texas 79401
Dear Chuck:
Pursuant to our conversation I am setting forth how we deal with writings alleging professional misconduct in the taping of telephone conversations that are otherwise illegal.
Professional Ethics Opinion 514 sets forth the Professional Ethics Committee's opinion that such taping is unethical. Those opinions are not binding on the grievance system.
The Board of Disciplinary Appeals reviews classification decisions from our staff that are appealed. currently this position is that such conduct, if otherwise legal, is not unethical. Based on that position, we currently classified any allegation such as described in the opinion as any inquiry and as such it is dismissed at the initial stage review by the Chief Disciplinary Counsel staff.
I hope this helps clarify what is an unusual situation.
Sincerely,
/s/ Steve
Steven W. Young
General Counsel