E-Ethics Vol. I, No. III (May, 2001)
(c) 2001 by David Hricik
Of Lawful Dishonesty: The Ethics of Recording Telephone Conversations
I. The Ethics of Recording Phone Calls
.The ABA Committee on Professional Ethics is reconsidering the ABA's long-standing position that the recording of a telephone call by an attorney is unethical, even if it is legal for any other citizen to secretly record a call to which he is a party. This issue of E-Ethics explores the history of this prohibition and summarizes the current split in the authorities on the issue, and briefly addresses the risks and uncertainties associated with this activity. Links to all of the opinions cited in this edition, as well as a few others, are available on my website, www.hricik.com/Recording.html. I recently read that the ABA is currently revisiting its formal ethics opinion on this issue, and so this issue of E-ethics previews what I believe a fair opinion on this issue might address.
A. If Recording is Illegal, It is Unethical.
State and federal laws governing the legality of surreptitiously recording a phone call vary. Some states make it lawful for one participant to a call to secretly record it; others require all parties' consent before recording can occur. See generally Frank v. Bloomcraft, Inc., 1999 WL 55700 (S.D.N.Y. No. 89 Civ. 5349 (Apr. 19, 1990) (analyzing whether state or federal law applies). See, e.g., CoulterBank of Am. Nat'l Trust and Sav. Assoc., 33 Cal.Rptr2d 766 (Cal. App. 1994) (discussing legality California state law).
Obviously, if it is illegal in a state to record a telphone conversation without consent of all the participants, whether it is ethical for an attorney to do so seems a moot point, but the ethics rules do prohibit attorneys from engaging in criminal misconduct. So, if it is illegal, it is unethical.
B. If Recording is Legal, It is Still Unethical in Many Jurisdictions.
Somewhat counter-intuitively, even if it is legal in a jurisdiction for a party to a call to record it surreptitiously, it may be unethical for a lawyer to do so. The origins of this prohibition can be traced to the Watergate scandal.
In the aftermath of Watergate, the ABA issued an opinion declaring that the surreptitious recording of telephone calls violated the Model Code. In ABA Formal Op. 337 (1974), the ABA reasoned that recording phone calls violated Canon 9 of the Model Code and DR 1-102(A)(4), which prohibited conduct involving "dishonesty, fraud, deceit or misrepresentation." The ABA reasoned that surreptitiously recording phone calls "clearly" involved dishonesty, fraud, deceit or misrepresenation, and so as a result "no lawyer should record any conversation whether by tapes or other electronic device, without the consent or prior knowledge of all parties to the conversation." Id.
Several states quickly joined the ABA. Within a decade or so after the ABA announced its opinion, the state bars Alaska, Hawaii, South Carolina, Texas,and New York state (opinion is not on the Internet) concluded -- sometimes with specific exceptions -- that even if state and federal law permitted it, a lawyer could not record a call without the consent of all parties to the conversation. As with the ABA, these opinions relied upon the proposition that the "failure to give notice of the recording of a conversation to all parties is the equivalent of a representation that the conversation is not being recorded, and is thus deceitful in violation of DR 1-102(A)(4)." Alaska Op. 92-2. A few other bar associations, including Minnesota, New Mexico (Part 1) and Part Two, New York City (Op. 1995-10), and, Virginia adopted the ABA's conclusion later, again with certain narrow exceptions. The opinion from Minnesota, for example, provides in full:
It is professional misconduct for a lawyer, in connection with the lawyer's professional activities, to record any conversation without the knowledge of all parties to the conversation, provided as follows:
This opinion does not prohibit a lawyer from recording a threat to engage in criminal conduct;
This opinion does not prohibit a lawyer engaged in the prosecution or defense of a criminal matter from recording a conversation without the knowledge of all parties to the conversation;
This opinion does not prohibit a government lawyer charged with civil law enforcement authority from making or directing others to make a recording of a conversation without the knowledge of all parties to the conversation;
This opinion does not prohibit a lawyer from giving legal advice about the legality of recording a conversation
Minnesota Lawyers Professional Responsibility Board Opinion 18 (Sept. 20, 1996)
Other states, however, rejected the ABA's conclusion and reasoned that if it was legal to record the call, it was ethical to do so. During the first decade following issuance of the ABA Opinion, only Alabama and Kentucky rejected it. of Alabama, in fact, adopted the ABA opinion and then rejected it about six months later.
In the 1990's, the number of states disagreeing with the ABA's opinion increased, and a few states even reversed their own prior adoption of it. Among those rejecting the ABA's position were the bar associations of Arizona, Hawaii, Mississippi, Michigan, New York County, Oklahoma, Oregon, and Utah.
The conclusion that it was not unethical to record calls was largedly based upon the perception by these bar associations that societal norms had changed since the ABA announced its opinion. For example, the Michigan bar association opinion reasons:
"The time has come" the Walrus said, "to talk of many things . . ." The committee believes that ABA Formal Opinion 337 is over broad, and the rationale which supported its statement some twenty-four years ago has weakened. Whether a lawyer may ethically record a conversation without the consent or prior knowledge of the parties involved is situation specific, not unethical per se, and must be determined on a case by case basis.
Michigan Op. No. RI-309 (May 12 1998). (The Michigan Bar Association was quoting a Lewis Carroll poem, of all things.)
Amplifying and relying upon the proposition that "the times have changed" even more, the Utah bar association stated:
Privacy expectations are different in 1996 from what they were in 1974. As Stanley S. Arkin and the New York County Lawyers' Association have pointed out, it is reasonable in today's world to expect a conversation to be recorded, given the relative ease of the process. Apart from the basic reasoning that a lawyer needs to have an accurate means of preserving what is being told during the course of an important conversation, tape recorded conversations are becoming common-place. Arkin goes on to explain:
Technology has put the power to secretly tape record within the easy reach of every lawyer and litigant. Overall, the tape recorder, and its cousins-the hidden camera and the computer-allow outsiders to peer into and preserve aspects of life that were typically thought to be private and ephemeral. Hidden cameras in offices monitor the comings and goings of workers as well as their displays of affection and other personal matters. And tape recorders-the hidden kind-can be anywhere, recording words the speaker thought, and expected, were uttered in private. We may feel anonymous or alienated or alone, but increasingly we are subject to monitoring by technology.
In light of this currently changing environment and the Utah statute, we do not find ABA Opinion 337 to be persuasive. Other bar opinions and some courts from various jurisdictions have begun to reflect this changing environment also. For example, the Mississippi Supreme Court held that, under certain circumstances, an attorney may tape a conversation with a potential party opponent without his knowledge or consent. Some bar associations have also issued formal opinions holding that, under some circumstances with various limitations, surreptitious sound recording by an attorney of a conversation is permissible. As stated by the New York County Lawyers' Association: "The secret recording of a telephone conversation, where one party has consented, cannot be deceitful per se. Recording of telephone conversations is authorized under law, and either party should reasonably expect the possibility that the conversation may be recorded."
Some have expressed an intuitive feeling that the use of tape recorders by attorneys in this type of circumstance is "bush league" or "unseemly." Although we do not condone deceptive, deceitful or fraudulent actions, we see no principled reason to find it to be unethical for an attorney, within the limits discussed elsewhere in this opinion, to tape-record a conversation when it is expressly permitted by Utah law for all other persons.
Nevertheless, a number of issues that have arisen in other jurisdictions illustrate circumstances where the act of undisclosed recording of a conversation by an attorney would violate an ethical rule.
For example, it would be unethical for an attorney to fail to answer candidly if asked whether the conversation is being recorded. In Mississippi Bar v. Attorney ST,19 the Mississippi Supreme Court held that an attorney who taped conversations with a judge and a police chief while representing a client whose civil rights he believed were being abused was acting to protect his client's interests and did not act unethically. However, when asked by the police chief if he was recording their conversation, the attorney denied so doing, and the court held that the attorney violated the Mississippi Rule of Professional Conduct 4.1, which requires that a lawyer be truthful when dealing with others on a client's behalf. This violation warranted a private reprimand.
The lawyer's failure to identify himself, the client, or the purpose of the conversation could also constitute unethical misrepresentation. In In re An Anonymous Member of the South Carolina Bar,21 an attorney representing a family member for the purpose of investigating an auto accident, telephoned the driver of the other vehicle, who was not represented by counsel, telling him that he was the injured driver's cousin. He did not indicate that he was an attorney, and he secretly recorded the conversation. The South Carolina Supreme Court found the attorney to be guilty of misconduct.
When interacting with non-clients, attorneys must also be mindful of Rules 4.1 through 4.4, governing transactions with persons who are not clients. Specifically, Rule 4.4 provides: "In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violates the legal rights of such a person." Similarly, under Rule 4.1, an attorney must not make false statements of material fact to a third person.
Within the guidelines of this Opinion, a lawyer will not violate the Rules of Professional Conduct by making an undisclosed recording of a telephone conversation to which the lawyer is a party.
Utah Op. 96-4 (footnotes omitted). See also Wisconsin's Opinion on this Issue, advising a cautious approach.
The Restatement (Third) Law Governing Lawyers (2000) rejects the ABA opinion in a comment and Reporter’s Note. The reporter’s note provides in part: "When secret recording is not prohibited by law, doing so is permissible for lawyers conducting investigations on behalf of their clients, but should be done only when compelling need exists to obtain evidence otherwise unavailable in as reliable a form." Id. § 106, cmt. b. The Reporter’s note explains that "the position in the Comment, limiting any proscription to what general law provides, is derived from what seems to be the majority of recent ethics opinions of state and local ethics committees." Id. at p. 142, Reporter's Note. on cmt. b, citing N.Y. City Ethics Op. 696 (1993) and Okla. Ethics Op. 307 (1993). The Restatement does not mention the numerous bar opinions that adopted the ABA opinion, citing instead only those which rejected it.
Thus, in states where it is legal and ethical to record calls, lawyers must still abide by the usual ehtical obligations -- not to lie to third parties not excepted.
C. May a Lawyer Advise a Client to Commit Fraud, Dishonesty, Deceit or Misrepresentation?
The bar associations which have concluded that whether something is lawful does not mean that it is ethical base their conclusion on the position that lawyers can be held to a higher standard. This creates a further issue for lawyers in those states, since in those states it is legal for the client, but unethical for the lawyer, to record calls. May a lawyer advise a client to record? Is a lawyer permitted to ask a client to do the recording for the lawyer?
The authorities have generally reasoned that the lawyer may advise the client that recording is legal, but he may not "encourage" the client to record or ask the client it to do it in order to circumvent the ethical prohibition on the lawyer. See, e.g., Texas Opinion 514 (attorney can advise client that taping is legal, but cannot have client record calls to circumvent lawyer's ethical obligation). Lawyers who advise clients of the legality of recording may find themselves subject of discovery into the propriety of the lawyer's advice and conduct, however. See, e.g., Miana v. AC & R Advertising, Inc., 148 F.R.D. 68, 83-85 (S.D. N.Y. 1993) (detailing discovery into whether lawyer had improperly encouraged client to record call in violation of New York ethics opinions).
D. Analysis.
1. Who is right?
The conclusion of those bar associations holding that secretly recording calls is unethical, even if lawful, rests upon the curious premise that conduct that has been made lawful by Congress and a state legislature nonetheless involves dishonesty, fraud, deceit or misrepresentation. On the other hand, the opinions that rejected the "if it's legal it's ethical" approach believed that lawyers can and ought to be held to a higher standard than the public at large. There is much to be said for both sides of this argument, which is no doubt why the bar associations are so evenly split.
Those bar associations which permit the conduct due solely to the fact that it is lawful arguably have abdicated their roles as abiters of legal ethics. Merely because an act does not constitute a crime does not necessarily mean that the conduct should be acceptable by a member of the bar. The very wording of Model Rule 8.4 -- which proscribes not just the commission of frauds or crimes, but also conduct involving dishonesty, misrepresentation, or deceit -- proves that lawyers are in fact held to a higher standard. A private citizen can be sued only for committing fraud, while a lawyer may be disciplined in broader circumstances.
On the other hand, relying upon Model Rule 8.4 to reach the conclusion that lawyers should not secretly record calls has unintended consequences. The fundamental problem with concluding that secretly recording calls constitutes professional misconduct is that, read literally, it means that a lawyer cannot engage in the conduct even if it is entirely within another jurisdiction or even if it does not involve the lawyer's representation of a client, but instead occurs wholly in his personal life. Specifically, a lawyer who engages in conduct involving fraud, dishonesty, deceit or misrepresentation violates Model Rule 8.4(c), which proscribes such misconduct whether it occurs in the course of a representation, or not. Significantly, of all the opinions finding recording calls to be unethical, only Minnesota's recognizes an exception for purely personal conduct. In all other instances, a lawyer who records a purely private conversation ostensibly engages in professional misconduct and thus could be disciplined as a result. Further, it is difficult to reconcile the position that a lawyer cannot record calls because it involves deceit, fraud, dishonesty or misrepresentation with the position that he may nonetheless advise clients that they may do so. Specifically, if recording calls is so grievous an act, why is a lawyer not precluded by Model Rule 1.2(d) from advising a client to commit a fraudulent act? (The logician's answer is that recording involves deceit, misrepresentation, or dishonesty, but not fraud per se, and so it is within the ambit of Model Rule 8.4 but not Model Rule 1.2. None of the opionions so carefully states that recording does not involve "fraud," however.) If secretly recording calls involves intentional moral misconduct, then it seems somewhat inconsistent to allow the lawyer to advise the client to do it.
2. What's the Rule in Federal Court?
State rules do not apply in many federal courts and instead "national standards" of ethics (determined by consulting all of the available ethics authorities) control. See, e.g., In re Dresser Indus., Inc., 972 F.2d 540 (5th Cir. 1992), In re American Airlines, Inc., 972 F.2d 605 (5th Cir. 1992). As a result, it is unclear whether, for example, a Texas lawyer could ethically record a call in connection with a matter pending in federal court. While Texas has deemed it unethical for him to do so, the "national" authorities are openly split and deeply divided.
However, this may largely be an academic question. If a lawyer resides in a state in which it is professional misconduct to record a call, then even if it is ethical for him to do so in federal court, he could still be subjected to discipline by state authorities for having engaged in professional misconduct. For example, Texas Disciplinary Rule 8.05(a) subjects lawyers to discipline for engaging in conduct in other jurisdictions if the conduct constitutes "professional misconduct under Rule 8.04," which is the Texas counterpart to Model Rule 8.4, and which is the rule that these opinions say is violated by recording phone calls.
E. A Proposed Approach.
While the opinions on this issue are divided, they also recognize that there are areas of gray. Several of the bar opinions which find it generally unethical for a lawyer to record a call nonetheless recognize that it should not always be unethical for a lawyer to do so. Likewise, several of the opinions finding that is not per se unethical for lawyers to record calls nonetheless conclude that it sometimes may be unethical under the particular facts and circumstances.
Minnesota's opinion, quoted above, strikes a proper balance. First, it does find that recording calls without consent of the other parties is unethical. In my opinion, the fact that it is legal to record a call does not mean that it is ethical to do so. Based solely on informal discussions, I believe most people would question the integrity of a person who surreptitiously records a phone call -- without having good reason to do so.
And that is why the second aspect of the Minnesota opinion is important. It makes the following exceptions to the prohibition:
Any opinion on this issue should address those exceptions. To them, I would add:
Further, any opinion should recognize that the lawyer may not engage misrepresentation. Accordingly, if a lawyer is asked whether he is recording a call, he should be required to admit that he is. Consequently, any opinion on this issue should emphasize that the lawyer is precluded from recording when another party, in the course of dealing with the lawyer, has objected to being recorded.
Finally, while the Minnesota opinion specifically allows a lawyer to advise clients "about the legality of recording a conversation," any opinion should further explain that a lawyer is not precluded by Model Rule 1.2(d) from advising the client to record, since "fraud" is not involved.
Minnesota's opinion comes very close to striking a proper balance between maintaining public confidence in lawyers and in allowing lawyers freedom to protect legitimate client -- and personal -- interests. Unfortunately, few states have adopted a pragmatic approach that takes these competing interests into account. In that regard, and as a final observation, Michigan and several other states have issued opinions which state that the ethics of recording calls can be determined only by examining the facts on a case-by-case basis. This approach provides little guidance to lawyers in an area which ought to be fairly straightforward. Clear rules will reduce controversy, cost, and inconvenience to clients and lawyers alike.
If you have any comments, please e-mail them to me.
II. ASPs. Very Dangerous. You Go First.
Asps are snakes. In one of my favorite scenes from Indiania Jones and the Temple of Doom, after Indy drops a torch down into the buried lost tomb that he hopes houses the Ark of the Covenant and sees the floor literally slithering with life, he rolls onto his back, looking skyward and into the camera and says, "Snakes. Why did there have to be snakes?"
His comrade, Sallah, sniffs the foul-smelling air rising from the ancient room and says:
"Asps. Very dangerous. You go first."
Click here to hear for yourself.
I've never seen an asp. Sallah was not talking about the same ASPs that Peter Krakaur and I have become concerned with. Our ASPs are "application service providers." ASPs offer various services over the Internet, including file storage, on-line backup, billing services, and simple e-mail applications. Peter Karkaur and I have written an article addressing the ethical issues that we have submitted to Law Practice Management for publication, and which we will post on our websites when appropriate. Any lawyer using an ASP for on-line services should consider the issues we raise, and analyze whether a particular ASP's services implicates other ethical issues.
After doing so, some lawyers may sniff the air and decide to let others "go first." Others may at least proceed with a bull-whip and a sharp stick to probe for these ethical snakes in the grass.
E-Ethics is a free monthly e-mail based newsletter concerning ethical issues in the practice of law, ranging from conflicts of interest, to in-house counsel licensing requirements, to the ethics issues created by the use of high-technology. Links to numerous sites relating to those topics, as well as other discussions, can be found onHricik.com. Obviously, as is the case with any legal question, the matters discussed in E-Ethics are time-sensitive and subject to change. No one should rely on E-Ethics in place of actual legal advice addressed to a specific set of known facts.
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