In an age when nearly everyone carries on their person a tiny recording device in the form of a smartphone, the question of whether it is lawful to surreptitiously record conversations with others comes up often. One never knows when an accurate and credible record of a conversation might be useful. In all but a handful of states, these recordings are lawful.
However, as lawyers know, the right question to ask is whether making these kinds of recordings is, legalities aside, advisable under the circumstances. And in the case of lawyers themselves, the question is whether secretly recording another person is ethical and advisable. On that topic, the legal community is divided – though clearly moving in the direction of permitting some types of surreptitious recording where it’s lawful to do so.
Some believe that honesty and professionalism ideals prevent a lawyer from ever secretly recording a conversation; others, however, believe that the client is owed the use of any tactic not strictly prohibited by law or ethical considerations.
The Wisconsin State Bar’s Professional Ethics Committee weighed in Feb. 6 with an ethics opinion discussing whether lawyers secretly record conversations with others. Their answer won’t surprise anyone who’s ever consulted a good lawyer: “It depends.”
Crucially, it depends on who the lawyer is secretly recording. The Wisconsin ethics opinion, in a nutshell, concluded:
- It is unethical to record clients without their knowledge or consent.
- It is unethical to record judicial officers or court personnel without their knowledge or consent.
- Lawyers may, consistent with ethics rules, record opposing counsel without their knowledge or consent.
- Lawyers may, consistent with ethics rules, record all other persons without their knowledge or consent.
The Wisconsin ethics opinion contains a detailed historical account of the legal community’s shifting ethical norms on surreptitious recording activities by lawyers. Back in 1974, the American Bar Association declared that ethical rules forbidding dishonesty and fraud prohibited lawyers from making secret recordings of others. “[N]o lawyer should record any conversation whether by tapes or other electronic device, without the consent or prior knowledge of all parties to the conversation,” the ABA wrote in Formal Opinion 337.
Opinion 337 splintered state bar groups across the country. Some jurisdictions followed the ABA’s approach, while others nominally followed the ABA but published numerous exceptions (e.g., recordings by law enforcement, confidential conversations with clients, recordings made for creating a record in client file), while yet another group of states simply declined to adopt the unethical per se approach.
By 2001, the ABA had changed its views on the subject of surreptitious recordings. The ABA in Formal Opinion 01-422 that these recordings were not necessarily unethical if made in a jurisdiction where such recordings are lawful. Surreptitious recordings, when made in jurisdictions that require all parties to consent to recording, may violate Model Rule 8.4 (Misconduct) or Model Rule 4.4 (Respect for the Rights of Third Persons) under some circumstances, the ABA opined. It would also be unethical, the ABA said, for a lawyer secretly recording a conversation to represent that the conversation was not being recorded.
Broadly speaking, there are two approaches to regulating the recording of conversations. Under federal law, and under the laws of most states, recording a conversation is lawful if one party to the conversation gives consent. Typically, this “consent” is given by the person doing the recording. In a much smaller number of states (California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington), all parties must consent to the recording of their conversation. Persons who want to dive deeper into the fine points of state laws on electronic recording might begin with this guide from the Reporters Committee for Freedom of the Press.
The drafters of the Wisconsin ethics opinion remarked that differing views within the state bar over what it means to be a vigorous client advocate called for an opinion that neither condemned nor blessed the practice of making surreptitious recordings. Some believe that honesty and professionalism ideals prevent a lawyer from ever secretly recording a conversation; others, however, believe that the client is owed the use of any tactic not strictly prohibited by law or ethical considerations.
With this in mind, the drafting committee said that the “propriety of nonconsensual recording depends on the circumstances of each individual situation.” This is what the Wisconsin ethics opinion had to say on the propriety of recording persons a Wisconsin lawyer might be tempted to record:
Clients. Secretly recording clients can be beneficial, but it would undermine trust in the lawyer and impair the lawyer’s ability to effectively serve the client. The committee concluded that thus that recording clients without their knowledge and consent violates Wisconsin Supreme Court Rule 20:1.4(b) regarding communications with clients to allow informed decision-making, and Rule 20:8.4(c) regarding misconduct.
Judges and court personnel. State laws and regulations give authority to manage judicial proceedings exclusively to the courts. For this reason, the committee said, it would be unethical for lawyers to make surreptitious recordings of court proceedings or off-the-record interactions with court personnel. Lawyers who engage in this type of conduct would violate ethical rules on maintaining respect for the courts as well as failure to adhere to a lawyer’s obligations under the rules of the tribunal.
Opposing counsel. While surreptitiously recording conversations with opposing counsel isn’t necessarily a violation of ethical rules, lawyers should think twice before doing so, the committee observed. As is the case with recording clients, making secret recordings of opposing counsel can destroy trust and the sort of working relationship that often promotes effective representation of the client.
According to the committee:
Importantly, the harm caused may not be limited to a single case. If the recording lawyer develops a reputation of being untrustworthy it can be harmful both to the lawyer and all their future clients. While the committee does not conclude that recording opposing counsel may never be done, it cautions lawyers to carefully consider the risks and potential harm in doing so.
Everybody else. A lawyer’s failure to disclose that a conversation with a third party is being recorded is not unethical unless the third party is represented by counsel.
Although the Wisconsin opinion is strictly limited in legal to lawyers in that state, everyone can benefit from a reminder that trust is the coin of the realm in all our dealings with others, particularly in litigation and the practice of law. Whatever momentary advantages might be gained by questionable (but lawful) behavior, they nearly always come at the cost of impaired relationships with clients, courts, and opposing counsel – the small universe of parties critical to a successful law practice.
