Ethics Opinion 229
Surreptitious Tape Recording by Attorney
A lawyer who tapes a meeting attended by him, his client, and representatives of a federal agency investigating his client commits no ethical violation, even if he does not reveal that a tape is being made, so long as the attorney makes no affirmative misrepresentations about the taping. The agency reasonably should not expect that the preliminary phase discussions are confidential. The agency also should expect that such discussions will be memorialized in some fashion by the investigated party's attorney and that the record made may be used to support a claim against the agency.
Provision C Rule 8.4 (c) (Misconduct involving dishonesty, fraud, deceit, or misrepresentation)
The inquirer is employed in the inspector general's office of a federal agency. The agency was conducting a "formal administrative/employment investigation" concerning one of the agency's employees. The subject of the investigation was informed that no criminal ramifications would result from this investigation and had received a "non-prosecution assurance." The subject/employee chose to be represented by a member of the D.C. Bar at an interview conducted by an investigator in the Inspector General's office.
The inquirer reports that, during the "preliminary phase" of the interview in which ground rules and guidelines for the participants were being explained, the interview was terminated. The inquirer ascribes this to the "disruptive actions" of the employee's attorney. No specific examples are given, but the inquirer seems to mean that the employee's attorney took a more adversarial approach to the "interview" than the agency thought appropriate.
The inquirer came to believe that the attorney had been surreptitiously tape recording the proceeding, including the informal "preliminary phase" of the meeting. The agency's investigator had agreed during the preliminary phase to tape the formal portion to follow, and the inquirer reports that a copy of this tape would have been provided to the subject/employee. The inquirer asks if surreptitious taping of the "preliminary phase" of such a proceeding is unethical.
The Committee does not address questions of law outside the scope of the disciplinary rules. We assume for the purposes of this opinion that there was nothing illegal about the tape recording. We comment only on the legal ethics question involved in surreptitious tape recording in these circumstances.
In our Committee's Opinion 178, Attorney A gained permission from Attorney B to interview B's client as part of a criminal investigation. The Committee held that A's failure to disclose A's intention to record the interview meant that the consent obtained from Attorney B under DR 7-104(A)(1) was not a sufficiently informed one. The majority opined that the client would be "lulled into a false sense of security and confidentiality in the interview" because of having obtained the "shield and protect[ion]" of retaining an attorney and the attorney having consented to the interview. The opinion also said that the standard created by DR 1-102(A)(4) obligated Attorney A to inform Attorney B that the interview would be recorded.
Four concurring members of the Committee would have gone further and found the conduct to be "conduct involving dishonesty, fraud, deceit or misrepresentation" under DR 1-102(A)(4), now Rule 8.4(c). Four other members dissented, disagreeing on whether the witness was a party to the matter under DR 7-104(A)(1) and whether the conduct violated DR 1-102(A)(4).
No question concerning DR 7-104(A)(1) or its successor Rule 4.2 is involved here. This circumstance does not involve what was disclosed to an attorney in seeking permission to talk to his client. The agency representatives may be unaware that preliminary phase discussions are being taped. They, however, do not have any basis for being "lulled into a false sense of security and confidentiality" that their words will not be memorialized and used to support a claim against the agency.
In 1974, Opinion 337 of the American Bar Association Committee on Ethics and Professional Responsibility held that attorneys' taping of others was per se unethical in almost all circumstances.1 The ABA Committee relied on Canon 9 of the Model Code of Professional Responsibility and the DR1-102(A)(4) prohibition on conduct involving dishonesty, fraud, deceit or misrepresentation. The broad holding of Opinion 337 has been criticized. Some states have elected to vary from the general rule stated in Opinion 337.
Ethics committees of several bars have excepted recording of witnesses by a criminal defense lawyer. Ariz. Bar Op. 90-02 (March 16, 1990); Ky. Op. E-279 (1984); Assn. of the City Bar of N.Y. 80-95 (undated); Tenn. Op. 86-F-14 (July 18, 1986). The Idaho bar recently opined that lawyers may not secretly record telephone conversations with other lawyers or potential witnesses but said it was permissible to record conversations between lawyer and client since these were confidential. Idaho Op. No. 130 (May 10, 1989) The Utah Bar has held lawyers may record surreptitiously by electronic or mechanical means communications with clients, witnesses, or other lawyers. (Utah Op. No.90, undated) A 1975 Arizona Opinion outlined four exceptions in vacating previous opinions stating an absolute ban on surreptitious tape recording.2 Ariz. Op. No. 75-13 (June 11, 1975).
Although we do not necessarily concur with any of the preceding opinions, we, too, do not believe that a per se rule with respect to tape recording is appropriate. Rather, applicable circumstances should be evaluated to determine whether the particular conduct constitutes dishonesty, fraud, deceit or misrepresentation.
Here the agency expects to tape at least the formal part of the hearing and will supply participating attorneys with a copy. The agency has no reasonable expectation that any statements made during the preliminary or formal phase of the hearing are secret or confidential as to the employee. Absent affirmative misrepresentations about taping the proceedings, we see nothing unethical in an employee's attorney having done so.
We find this to be a different circumstance than when Attorney A in our Opinion 178 sought permission for an informal interview with Attorney B's client without telling Attorney B that he intended to tape the interview. The conduct of a bar member in recording preliminary discussions in the type of proceedings involved in this opinion may be a prudent protection for the client. Absent affirmative misrepresentations?to the contrary, we see no deceit in taping in these circumstances because the inquiring agency has reason to believe that the employee and his or her attorney may memorialize all discussions in some fashion and use that record to support a claim against the agency.
1. The only exception given by the ABA committee was:
extraordinary circumstances in which the Attorney General of the United States or the principal prosecuting attorney of a state or local government or law enforcement attorneys or officers acting under the direction of the Attorney General or such principal prosecuting attorneys might ethically make and use secret recordings if acting within strict statutory limitations conforming to constitutional requirements. This opinion does not address such exceptions which would necessarily require examination on a case by case basis. It should be stressed, however, that the mere fact that secret recordation in a particular instance is not illegal will not necessarily render the conduct of a public law enforcement officer in making such a recording ethical.
2. These exceptions are: (a) utterances that are themselves crimes, e.g., bribe offers, threats, extortion attempts and 2 obscene calls; (b) a conversation to protect the attorney or his client from perjured testimony; (c) conversations with informants and or persons under investigation for self-protection; and (d) conversations “where specifically authorized by statute, court rule or court order.”