Could an Arizona lawyer advise a client about secretly recording calls with the client's former spouse?

Plain-English summary

A divorced parent asked whether the parent could record calls between the children and former spouse without that spouse's knowledge. The committee says federal and state recording law may permit some such conduct, but whether this proposal is lawful is beyond its jurisdiction. Under ER 1.2(d), a lawyer who concludes it is illegal cannot advise the client to do it.

If the lawyer concludes the client may legally record, the lawyer may explain that right under duties to communicate and render candid advice. The opinion distinguishes client conduct from the lawyer's own covert recording, which prior Arizona opinions restrict. The lawyer cannot use a third party to make a recording the lawyer could not ethically make directly.

Currency note

This opinion was issued in 2000, before the State Bar of Arizona's adoption of the 2003 revisions to the 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 Treat this page as historical context, not current guidance.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 the committee decide whether the parent could legally record the calls?

A: No. It leaves that legal question outside its ethics jurisdiction.

Q: Could the lawyer explain a lawful recording option to the client?

A: Yes. The opinion says the lawyer may advise about the client's legal rights, even if the lawyer could not personally make the same recording.

Q: Could the lawyer direct someone else to record what the lawyer could not?

A: No. The opinion says lawyers may not use third parties to evade their own recording restrictions.

Background and rules framework

The opinion applies Arizona ER 1.2(d) to advice about unlawful conduct, ER 1.4(b) to informed client decisions, and ER 2.1 to candid legal advice. It distinguishes prior opinions about lawyers' own covert recording.

Citations and references

Rules of Professional Conduct:

• AZ ER 1.2(d): counseling criminal or fraudulent conduct
• AZ ER 1.4(b): explaining the client's options
• AZ ER 2.1: independent and candid advice

Statutes:

• 18 U.S.C. § 2511(2)(d) and A.R.S. § 13-3005: recording laws cited without a legality ruling

Cases:

• State v. Allgood, 171 Ariz. 522, 831 P.2d 1290 (App. 1992): recording law cited

Other opinions cited:

• Arizona Opinions 75-13, 90-02, and 95-03: lawyers' covert recordings

See also

• AZ Ethics Op. 00-05: Former Employee Interview

Source

• Landing page: https://www.azbar.org/for-legal-professionals/ethics/ethics-opinions/?V=Opinions&OpinionId=261
• Official opinion API: https://api.azbar.org/EthicsRules/Opinion/?Id=261

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

                                              (Revised November 2000)

FACTS

The inquiring attorney’s client is a divorced parent. On good faith, the client believes that during telephone conversations between the client’s children and the client’s former spouse, the former spouse undermines the children’s relationship with the client. After the conversations, the children demonstrate severe emotional upset, often lasting for hours. The inquiring attorney has been asked by the client whether the client may tape record telephone conversations between the children and the former spouse without the former spouse’s knowledge or consent.

QUESTION PRESENTED

May an attorney ethically advise a client that the client may record telephone conversations between the client’s children and the client’s former spouse without the former spouse’s
knowledge or consent?

RELEVANT ETHICAL RULES

ER 1.2. Scope of Representation

* * * *

            (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the
lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any
proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

* * * *

ER 1.4. Communication

             (a) A lawyer shall keep a client reasonably informed about the status of a matter and
promptly comply with reasonable requests for information.

              (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation.

ER 2.1. Advisor

In representing a client, a lawyer shall exercise independent professional judgment and render
candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.

OPINION

This Committee has issued a number of opinions that address whether an attorney may ethically participate, directly or indirectly, in tape recording a conversation without the consent or prior knowledge of all parties to the conversation. See, e.g., Ariz. Op. 95-03 (summarizing prior opinions). In Ariz. Op. 75-13, decided before the Model Rules of Professional Conduct were adopted in Arizona, we stated a broad general rule that, with certain exceptions, it was “improper for a lawyer to record by tape recorder or other electronic device any conversation between the lawyer and another person, or between third persons, without the consent or prior knowledge of all parties to the conversation.” Ariz. Op. 75-13 at 2. In our most recent opinion, Ariz. Op. 95-03, we said that an attorney may not surreptitiously tape record a telephone conversation with opposing counsel because such conduct involved an element of deceit and misrepresentation and thus violated ER 8.4(d). Ariz. Op. 95-03 at 5. We have not previously considered whether an attorney may ethically advise his or her client that the client may surreptitiously tape record a conversation.

Federal and state laws allow tape recording of telephone conversations without the consent of all parties under certain circumstances. See 18 U.S.C. § 2511(2)(d); A.R.S. § 13-3005; State v. Allgood, 171 Ariz. 522, 523-24, 831 P.2d 1290, 1291-92 (App. 1992). Whether those circumstances exist here is a question of law beyond the scope of our jurisdiction.

If the inquiring attorney concludes that the client’s proposed conduct is illegal under federal or
state law, then the inquiring attorney may not, under ER 1.2(d), advise the client to tape record telephone conversations between the client’s children and the client’s former spouse.

If, on the other hand, the inquiring attorney concludes that the client may legally tape record those conversations, is there anything in our prior opinions on the ethical propriety of an attorney’s participation in surreptitious tape recording that would preclude the inquiring attorney from so advising the client? We think not. Our earlier opinions on surreptitious tape recording recognized ethical limitations on an attorney’s direct participation in surreptitious tape recording, either personally, or through an agent, such as an investigator. Here, by contrast, it is the proposed conduct of a client, not an attorney, that is at issue. The inquiring attorney has a duty to “provide[] [his or her] client with an informed understanding of the client’s legal rights and obligations and [to] explain[] their practical implications.” Preamble to Arizona Rules of Professional Conduct. See also ERs 1.4(b) and 2.1. That the inquiring attorney is ethically precluded from engaging in surreptitious tape recording except in certain limited circumstances does not mean that the inquiring attorney may not advise the client that the client may legally do so. See Tex. Professional Ethics Comm. Op. No. 514 (February 1996) (attorney may ethically advise client that client may legally tape record conversation without consent of other party). Contra S.C. Bar Ethics Advisory Comm. Op. No. 91-14 (July 1991).

CONCLUSION

We hasten to add that, while an attorney may advise a client about the client’s right to surreptitiously tape record conversations, the attorney may not participate in the surreptitious
tape recording of a conversation, except as permitted by our prior opinions. Further, even if a
client does not raise the issue of surreptitious tape recording, the attorney may on the attorney’s own initiative advise the client about the client’s right to surreptitiously tape record conversations under Arizona law. Finally, attorneys may not use third parties to tape record conversations which an attorney ethically cannot tape record under the prior opinions of the
Committee, Ariz. Ops. 75-13, 90-02, and 95-03.¹