Can a lawyer record a conversation without telling the other people involved?

Plain-English summary

Noting the prevalence of clandestine recording and the absence of a recent Michigan opinion, the Committee revisited whether a lawyer may secretly record conversations. The only prior Michigan opinion, CI-200, had followed ABA Formal Opinion 337 (1974) in concluding such recording was unethical under the old Code of Professional Responsibility, on the theory that undisclosed recording involves dishonesty, deceit, or misrepresentation and the appearance of impropriety.

The Committee observed that, under Michigan law, a participant in a conversation does not violate the state eavesdropping statutes by recording it without the other participants' consent (Sullivan v. Gray), and the federal wiretapping act excludes interception by a party to the communication (18 USC 2511(2)(d)). It cautioned that lawful conduct is not automatically ethical. The Committee then surveyed a trend in other states (for example, New York County Lawyers Op. 696 and Oklahoma Op. 307) rejecting ABA 337 as overly broad, reasoning that recording has become a common practice and a technological convenience rather than inherently deceptive.

The Committee concluded that MRPC 4.4, which bars using methods of obtaining evidence that violate a third person's legal rights, was a new rule with no Code predecessor and, being inconsistent with ABA 337, should overrule it. It held that ABA Formal Opinion 337 was overbroad and its rationale had weakened, and that whether a lawyer may ethically record a conversation without consent is situation-specific, not unethical per se, and must be determined case by case.

Currency note

This opinion was issued in 1998 and interprets the Michigan Rules of Professional Conduct as they then stood. The MRPC have since been amended, and later opinions may have changed the analysis. As the opinion itself notes, lawyers should be mindful of applicable eavesdropping and wiretapping statutes. Treat this page as historical context, not current guidance. Verify against current rules and law before relying on any specific rule or requirement mentioned here.

Common questions

Q: Is it automatically unethical for a Michigan lawyer to record a conversation without the others' consent?

A: No. The opinion concluded such recording is not unethical per se and must be judged case by case under MRPC 4.4 and 8.4(b), departing from the older blanket prohibition in CI-200 and ABA 337.

Q: Does Michigan law allow a participant to record a conversation secretly?

A: The opinion noted that, under Sullivan v. Gray, a participant does not violate the Michigan eavesdropping statutes by recording without the other participants' consent, and federal law excludes interception by a party; but it stressed that lawful conduct is not automatically ethical.

Q: What rule governs the analysis now?

A: The opinion concluded MRPC 4.4 (methods of obtaining evidence that violate a third person's legal rights) and MRPC 8.4(b) (conduct involving dishonesty or deceit) frame the case-by-case inquiry, and that MRPC 4.4 should overrule the older ABA position.

Background and rules framework

The opinion interpreted MRPC 8.4(b) / Model Rule 8.4 (conduct involving dishonesty, fraud, deceit, or criminal-law violations reflecting on fitness) and MRPC 4.4 / Model Rule 4.4 (methods of obtaining evidence that violate a third person's legal rights). It read these against the older CI-200 and ABA Formal Opinion 337, the Michigan eavesdropping statutes, and the federal wiretapping act.

Citations and references

Rules of Professional Conduct:

• MRPC 8.4(b) / Model Rule 8.4 (dishonesty, deceit, criminal conduct)
• MRPC 4.4 / Model Rule 4.4 (methods of obtaining evidence violating a third person's rights)

Statutes:

• MCL 750.539 et seq. (Michigan eavesdropping statutes)
• 18 U.S.C. 2511(2)(d) (federal wiretapping act; party-to-communication exception)

Cases:

• Sullivan v. Gray, 117 Mich. App. 476; 324 N.W.2d 58 (1982), participant recording does not violate the eavesdropping statutes

Other opinions cited:

• CI-200: prior Michigan opinion (under the Code) treating secret recording as unethical
• ABA Formal Opinion 337 (1974): blanket prohibition the Committee found overbroad
• New York County Lawyers Op. 696; Oklahoma Op. 307 (1994): out-of-state opinions permitting recording

See also

• Mich Ethics Op. RI-314: Reporting Another Lawyer's Misconduct Versus Confidentiality
• Mich Ethics Op. RI-335: Reporting Nonpaying Clients to a Credit Reporting Agency

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1179&Type=6

Original opinion text

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

Note: Lawyers should be mindful of eveasdropping statutes that may apply.

RI-309

May 12, 1998

SYLLABUS

Whether a lawyer may ethically record conversations without the consent or prior knowledge of the parties involved is situation specific, not unethical per se, and must be determined on a case by case basis.

References: MRPC 4.4, 8.4(b), CI-200, MCL 750.539, et seq, 18 USC 2511(2)(d), ABA Formal Opinion 337 (1974), Sullivan v. Gray, 117 Mich App 476; 324 NW2d 58 (1982); Law of Lawyering; Handbook on the Model Rules of Professional Conduct, New York Op 696, Oklahoma Op 307 (1994).

TEXT

The issue of whether a lawyer may secretly record the conversations of others without their consent has been addressed by a number of ethics opinions from other states that have split on the issue. Due to the alleged prevalence of clandestine recording of conversations in today's society, and the lack of a recent Michigan ethics opinion, the Committee has concluded it would be wise to provide guidance to the lawyers of this state regarding this issue.

There is only one Michigan ethics opinion that considers the propriety of a lawyer recording conversations without the consent of the parties involved. That opinion, CI-200, (interpreting the Code of Professional Responsibility) concluded that such secret recording was unethical, and explicitly adopted the reasoning found in ABA Formal Opinion 337 (1974), which also concluded that the secret recording of conversations by lawyers was unethical. The ABA Committee based its opinion on Canon 9 of the Code of Professional Responsibility, entitled "A lawyer should avoid even the appearance of professional impropriety," and cited DR-1-102 (A)(4) of the Code of Professional Responsibility. The ABA Opinion states in part:

"The conduct proscribed in DR 1-102(A)(4), i.e., conduct which involves dishonesty, fraud, deceit or misrepresentation in the view of the Committee clearly encompasses the making of recordings without the consent of all parties. With the exception noted in the last paragraph, the Committee concludes that no 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 opinion is extremely broad, prohibiting the undisclosed recording of any conversation with any party, even though such activity is not unlawful under federal or state law.

MRPC 8.4(b) is substantially similar to the disciplinary rule cited in ABA Formal Opinion 337 and states in pertinent part:

"It is professional misconduct for a lawyer to:

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". . .

"(b) engage in conduct involving dishonesty, fraud, deceit, misrepresentation, or violation of the criminal law, where such conduct reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer;"

Under Michigan law, it is not a violation of the Michigan eavesdropping statutes, MCL 750.539, et seq., for a participant in a conversation to secretly record that conversation without the consent of the other participants. Sullivan v. Gray, 117 Mich App 476; 324 NW2d 58 (1982). The Federal Wiretapping Act specifically excludes from the conduct prohibited by the Act the interception of communications by a person who is part of the communication. 18 USC 2511(2)(d). The committee notes that while the conduct may be lawful, the conduct is not ethical per se.

The Committee is aware of a trend in other states to permit the recording of conversations by lawyers, under certain circumstances. As noted in the Law of Lawyering: Handbook on the Model Rules of Professional Conduct, 2d Edition, Hazard and Hodes Aspen Law & Business, a number of ethics opinions in other states have concluded that the secret recording of conversations by lawyers is not unethical. For example, the New York County Lawyers association approved the practice of secret recording, so long as the lawyer answers truthfully upon inquiry and does not make misleading use of the recorded statements. New York County Lawyers Association Opinion 696 (undated). The Association rejected the ABA opinion because, "normative standards have changed with technology: recording conversations is now a common practice that cannot be deemed underhanded or otherwise deviant." Id. Similarly, the Oklahoma Bar Association reached the same conclusion based upon similar reasoning:

"We believe [ABA] Formal Opinion 337 is overly broad and that it is not per se deceptive. Therefore, it is not unethical for an attorney to record conversations with persons from whom the attorney has not obtained consent. Attorneys document conversations routinely. Recordation is merely a technological convenience, providing a more accurate means of documenting rater than relying on one's memory, notes, shorthand, transcription, etc, for recall." Ok. Bar Ass'n Op 307 (1994).

MRPC 4.4 states:

"In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person."

To the extent that there was no similar rule under the old Code of Professional Responsibility, and MRPC 4.4 is inconsistent with ABA Formal Opinion 337, MRPC 4.4 should overrule the ABA Statement. C. Wolfram, Modern Legal Ethics, §124.4 (1986); Adams, "Tape Recording Telephone Conversations – Is it Ethical for Attorneys?" 15 J. Legal Prof. 171 (1990), Oklahoma Bar Association Opinion 307 (1994).

"The time has come" the Walrus said, "to talk of many things . . . ." The committee believes that ABA Formal Opinion 337 is over broad, and the rationale which supported its statement some twenty-four years ago has weakened. Whether a lawyer may ethically record a conversation without the consent or prior knowledge of the parties involved is situation specific, not unethical per se, and must be determined on a case by case basis.