In Colorado, can a lawyer secretly record a conversation, or direct an investigator to, even when one-party-consent recording is legal under state law?

Plain-English summary

Opinion 112 (adopted July 19, 2003) addresses when a lawyer may surreptitiously record, or direct another to record, an in-person or telephone conversation. "Surreptitious recording" means one party to the conversation (the recording party) consents but at least one other party is unaware. Colorado law permits one-party-consent recording (CRS section 18-9-304); the question the opinion answers is the separate ethical one.

The Committee concludes that surreptitious recording by a lawyer is generally improper even if legal under state law, because it involves an element of deception, artifice, or trickery that falls below the standard of candor and fairness, reaffirming the reasoning of CBA Opinion 22 (1962) and the Colorado Supreme Court's disciplinary decisions in People v. Selby and People v. Smith. For the same reason, it concludes a lawyer generally may not direct or even authorize an agent, such as an investigator or legal assistant, to record secretly (Rules 5.3 and 8.4(a)), and may not use the fruit of such improper recordings. The opinion distinguishes a client's own recording: where a client lawfully and independently records conversations (for example, before hiring the lawyer), the lawyer need not tell the client to stop and may use the recording, unless the lawyer learns the client's recording was unlawful, in which case Rule 1.2(d) bars assisting or using it.

The Committee then identifies two circumstances in which it believes lawyers should be permitted to record secretly, while cautioning that the Colorado Supreme Court has not recognized either exception and that attorneys should exercise particular care in relying on the opinion. The criminal-law exception allows an attorney (prosecutor or criminal defense lawyer) to record, or direct recording, for the purpose of gathering admissible evidence in actual or potential criminal matters, grounded in the historical and constitutional context of criminal practice and the goal of encouraging attorney oversight of such recording; it does not reach recording where the law prohibits it or recording of conversations (such as trial-preparation, plea, or proffer discussions) that are not for gathering admissible evidence. The private-conduct exception treats purely private surreptitious recording, unrelated to representing a client or practicing law, as not ordinarily deceitful, because the other person has diminished privacy expectations and may not even know they are speaking with a lawyer; the opinion gives the example of documenting harassing or threatening calls unrelated to the lawyer's practice.

Currency note

In September 2017 the Colorado Supreme Court amended Colo. RPC 8.4(c) to add an exception providing that "a lawyer may advise, direct, or supervise others, including clients, law enforcement officers, or investigators, who participate in lawful investigative activities." The opinion's own disclaimer states that this exception "supersedes that portion of Formal Opinion 112 relating to directing agents to surreptitiously record conversations, provided doing so is part of lawful investigative activities," and that the Committee "currently is considering modifying or amending the Opinion." Treat the directing-agents analysis below as superseded to that extent, and verify the current text of Rule 8.4(c) before relying on any specific guidance.

In practice

Under the Colorado rule as it stood at the time of the opinion, the analysis turns on whether the recording is deceitful in the lawyer's professional capacity. The opinion holds that a lawyer generally may not secretly record, or direct an agent to record, a conversation even where state law allows it, and may not use the fruits of an improper recording, but may use a client's own lawful and independent recording. The Committee would permit secret recording to gather admissible evidence in criminal matters and for purely private matters unrelated to law practice, while stressing that the Colorado Supreme Court has not adopted those exceptions. As the Currency note explains, the 2017 amendment to Rule 8.4(c) has since superseded the opinion's treatment of directing agents in lawful investigative activities, so confirm the current rule before relying on the directing-agents analysis.

Common questions

Q: It is legal to record a call I am on in Colorado. Can I, as a lawyer, secretly record it?

A: Generally no, in your professional capacity. The opinion concludes that even where one-party-consent recording is legal, surreptitious recording by a lawyer is generally improper under Rule 8.4(c) because it involves an element of deceit.

Q: Can I have my investigator secretly record a witness?

A: The opinion concludes a lawyer generally may not direct or authorize an agent to record secretly (Rules 5.3 and 8.4(a)). Note, however, the Currency note: a 2017 amendment to Rule 8.4(c) now permits a lawyer to direct or supervise others in lawful investigative activities, which the opinion's disclaimer says supersedes this part of Opinion 112.

Q: My client recorded calls before hiring me. Can I use them?

A: The opinion concludes that if the client recorded lawfully and independently, the lawyer need not tell the client to stop and may use the recordings, unless the lawyer learns the recording was unlawful, in which case Rule 1.2(d) bars using it.

Q: Is there an exception for criminal cases?

A: The Committee recognizes a criminal-law exception allowing a prosecutor or criminal defense lawyer to record, or direct recording, to gather admissible evidence in criminal matters, but it cautions that the Colorado Supreme Court has not recognized this exception, so lawyers should exercise particular care.

Q: What about recording in my personal life?

A: The opinion concludes that purely private surreptitious recording, unrelated to representing a client or practicing law, is not ordinarily deceitful, giving the example of documenting harassing or threatening calls that have no relationship to the lawyer's practice.

Background and rules framework

The opinion interprets Colo. RPC 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) as the central prohibition, together with Colo. RPC 8.4(a) (misconduct through the acts of another) and 5.3 (responsibility for nonlawyer agents) for directing investigators, Colo. RPC 1.2(d) (not assisting a client's crime or fraud) for unlawful client recordings, and Colo. RPC 4.4 and 4.1 (respect for third persons; truthfulness) as related provisions. It builds on CBA Opinion 22 (1962) and the Colorado Supreme Court's disciplinary line, and contrasts ABA Formal Opinion 337 (1974) with the later ABA Formal Opinion 01-422 (2001), which abandoned the per se prohibition.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 8.4(c) / Model Rule 8.4 (dishonesty, fraud, deceit, misrepresentation)
• Colo. RPC 8.4(a) / Model Rule 8.4 (violating the rules through the acts of another)
• Colo. RPC 5.3 / Model Rule 5.3 (responsibilities regarding nonlawyer agents)
• Colo. RPC 1.2(d) / Model Rule 1.2 (not assisting a client's crime or fraud)
• Colo. RPC 4.4, 4.1 / Model Rules 4.4, 4.1 (respect for third persons; truthfulness)

Statutes:

• CRS section 18-9-304 (one-party-consent recording is lawful in Colorado)

Cases:

• People v. Selby, 198 Colo. 386, 606 P.2d 45 (Colo. 1979), secret recording suggests trickery and deceit (disbarment)
• People v. Smith, 778 P.2d 685 (Colo. 1989), discipline for secretly recording a former client; potential prosecutorial exception noted
• People v. Wallin, 621 P.2d 330 (Colo. 1981), discipline including secret recording of a witness
• Hoffa v. United States, 385 U.S. 293 (1966), no constitutional protection for a wrongdoer's misplaced confidence

Other opinions cited:

• CBA Formal Op. 22 (1962): undisclosed recording by a lawyer is improper
• ABA Formal Op. 337 (1974): general prohibition on undisclosed recording
• ABA Formal Op. 01-422 (2001): undisclosed recording is no longer treated as inherently unethical
• New York City Bar Op. 2003-2 (2003): secret taping permitted to preserve evidence of threats

See also

• ABA Formal Op. 01-422: Secretly Recording Conversations
• OH BPC Op. 2012-001: Secret Recording by Lawyers
• NY State Bar Op. 515: Advising on Secret Recording
• OH BPC Op. 97-003: Secret Recording by Lawyers

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_112_2011.pdf