Is it ethical for a lawyer to secretly record a conversation without telling the other party?

Plain-English summary

The committee reexamined Formal Opinion 337 (1974), which had stated that, with a possible exception for law enforcement, a lawyer could not ethically record any conversation electronically without the prior knowledge of all parties. The committee "now rejects the broad proscription stated in Opinion 337," and withdrew that opinion. It reasoned that Opinion 337 had rested partly on the Model Code's "appearance of impropriety" admonition, which was not carried forward as a basis for discipline when the Model Rules were adopted, and that the surviving prohibition on dishonesty in Rule 8.4(c) did not make a lawful but secret recording inherently deceitful. As the committee put it, "the mere act of secretly but lawfully recording a conversation inherently is not deceitful."

The committee set boundaries. Where state law forbade recording without all parties' consent, a lawyer who violated that law would likely also violate Rule 8.4(b) or 8.4(c), and because such statutes created a legal right, nonconsensual recording to gather evidence could also offend Rule 4.4's bar on methods that violate a third person's rights. Recording undertaken with no substantial purpose other than to embarrass or burden a third person would itself violate Rule 4.4. And even where recording was permitted, a lawyer could not falsely deny it: "That a lawyer may record a conversation with another person without that person's knowledge and consent does not mean that a lawyer may state falsely that the conversation is not being recorded," a misstatement that would likely violate Rule 4.1.

On recording one's own client, the committee was divided over whether the Model Rules forbade the practice, because the duty of loyalty and the confidentiality and communication duties raised considerations absent with non-clients. It was unanimous, however, that "it is almost always advisable for a lawyer to inform a client that a conversation is being or may be recorded, before recording such a conversation."

Currency note

This opinion was issued in 2001, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did this opinion let lawyers secretly record conversations?

A: It concluded that lawful but secret recording did not by itself violate the Model Rules, withdrawing the flat ban of Formal Opinion 337. It did not address whether other misrepresentations accompanying an investigation might still be improper.

Q: What if state law requires everyone's consent to record?

A: The opinion held that recording in violation of an all-party-consent statute, which is a criminal offense, would likely violate Rule 8.4(b) or 8.4(c), and that doing so to obtain evidence could also violate Rule 4.4.

Q: Could a lawyer deny that a call was being recorded?

A: No. The opinion held that even where recording was lawful, falsely stating a conversation was not being recorded would likely violate Rule 4.1's bar on false statements of material fact.

Q: What about recording a client?

A: The committee was divided on whether the Rules prohibited secretly recording a client, but unanimously concluded it was almost always advisable to tell the client first.

Background and rules framework

The opinion interpreted Rule 4.1 (truthfulness in statements to others), Rule 4.4 (respect for the rights of third persons), and Rule 8.4(b) and 8.4(c) (criminal acts and conduct involving dishonesty, fraud, deceit, or misrepresentation). It reconsidered and withdrew Formal Opinion 337, which had drawn on the superseded Model Code's "appearance of impropriety" concept. Because the opinion predated the 2002 revisions, it applied these provisions as they then stood.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 4.1 (false statement of material fact to a third person)
• ABA Model Rule 4.4 (methods that violate the legal rights of third persons)
• ABA Model Rule 8.4(b) and 8.4(c) (criminal acts; dishonesty, fraud, deceit, misrepresentation)

Other opinions cited:

• ABA Formal Op. 337 (1974) (prior flat ban on nonconsensual recording; withdrawn)
• ABA Informal Op. 1320 (1975) (reconsideration of Formal Op. 337)

Cases:

• Mississippi Bar v. Attorney ST, 621 So. 2d 229 (Miss. 1993), false denial that recording occurred
• Apple Corps. Ltd. v. International Collectors Society, 15 F. Supp. 2d 456 (D.N.J. 1998), investigative recording

See also

• ABA Formal Op. 06-439: Truthfulness in Negotiation and Caucused Mediation
• ABA Formal Op. 06-440: Unsolicited Receipt of Privileged or Confidential Materials
• ABA Formal Op. 502: Communication With a Represented Person by a Pro Se Lawyer

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 01-422.pdf