Could a Minnesota lawyer secretly record a conversation in connection with their practice?

Plain-English summary

The opinion set a general prohibition: it was professional misconduct for a lawyer, in connection with the lawyer's professional activities, to record any conversation without the knowledge of all parties to the conversation. The opinion's committee comment explained that, although secret recording is not illegal where one party consents, the Board and the Office had long treated it as inherently deceitful and a violation of the standards prohibiting dishonesty, fraud, deceit, or misrepresentation, citing Rule 8.4(c). The comment noted this position was consistent with ABA Formal Opinion 337 (1974).

The opinion then carved out four exceptions. It did not prohibit a lawyer from recording a threat to engage in criminal conduct; from recording, where the lawyer was engaged in the prosecution or defense of a criminal matter, a conversation without all parties' knowledge; from a government lawyer charged with civil law-enforcement authority making or directing such a recording; or from a lawyer giving legal advice about the legality of recording a conversation.

The committee comment explained the reasoning for the exceptions, including that limiting the criminal-case exception to prosecutors could raise equal-protection problems (citing Kirk v. State, 526 So.2d 223 (La. 1988)), and that surreptitious recording can be a necessary tool in civil enforcement areas such as consumer fraud and deceptive trade practices. The comment cautioned that the advice exception was not intended to let non-lawyer employees or agents record conversations in violation of the opinion, citing Rule 5.3.

Currency note

The Board flagged this opinion as Repealed effective April 18, 2002; it is retained here for historical research only.

This opinion was issued in 1996, before the Minnesota Supreme Court's adoption of the 2005 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 Treat this page as historical context, not current guidance.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: Could a lawyer secretly record a conversation in their professional work?

A: Generally no. The opinion treated recording a conversation without all parties' knowledge, in connection with the lawyer's professional activities, as professional misconduct under Rule 8.4(c).

Q: What were the exceptions?

A: Recording a threat of criminal conduct; recording in the prosecution or defense of a criminal matter; recording by a government lawyer with civil law-enforcement authority; and advising a client about the legality of recording.

Q: Could a lawyer advise a client about recording even though the lawyer could not do it?

A: Yes. Because one-party-consent recording is not illegal, the opinion did not prohibit a lawyer from advising a client about the legality or admissibility of such a recording, but it did not permit the lawyer's non-lawyer staff to do the recording.

Background and rules framework

The opinion applied Rule 8.4(c) of the Minnesota Rules of Professional Conduct (the analog of Model Rule 8.4(c) on conduct involving dishonesty, fraud, deceit, or misrepresentation), and referenced the predecessor DR 1-102(A)(4) of the Code of Professional Responsibility and Rule 5.3 on non-lawyer assistance. It was adopted in 1996 and repealed in 2002. (The ABA later revisited its own 1974 position in Formal Opinion 01-422.)

Citations and references

Rules of Professional Conduct:

• MR 8.4 (misconduct, including dishonesty and deceit); MR 5.3 (non-lawyer assistance)
• Minnesota RPC 8.4(c) and 5.3; former DR 1-102(A)(4), Code of Professional Responsibility

Cases:

• Kirk v. State, 526 So.2d 223 (La. 1988), equal-protection disparity between prosecutors and defense lawyers on secret recording

Other opinions cited:

• ABA Formal Opinion 337 (1974): surreptitious recording by lawyers
• Arizona Opinion No. 90-02; Tennessee Ethics Opinion 86-F-14(a) (1986); Kentucky Opinion E-279 (1984)

See also

• ABA Ethics Op. 01-422: Secret Electronic Recording by Lawyers
• Alaska Ethics Op. 2003-1: Recording Conversations

Source

• Landing page: https://lprb.mncourts.gov/lawyers-professional-responsibility-board-opinions/
• Original PDF: https://lprb.mncourts.gov/wp-content/uploads/2024/10/Opinion-18_compressed.pdf

Original opinion text

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

LAWYERS PROFESSIONAL RESPONSIBILITY BOARD
Repealed: April 18, 2002
OPINION NO. 18
SECRET RECORDINGS OF CONVERSATIONS
It is professional misconduct for a lawyer, in connection with the lawyer's professional activities,
to record any conversation without the knowledge of all parties to the conversation, provided as
follows:
1. This opinion does not prohibit a lawyer from recording a threat to engage in criminal
conduct;
2. This opinion does not prohibit a lawyer engaged in the prosecution or defense of a
criminal matter from recording a conversation without the knowledge of all parties to the
conversation;
3. This opinion does not prohibit a government lawyer charged with civil law
enforcement authority from making or directing others to make a recording of a
conversation without the knowledge of all parties to the conversation;
4. This opinion does not prohibit a lawyer from giving legal advice about the legality of
recording a conversation.
Adopted: September 20, 1996.
Repealed: April 18, 2002.
Committee Comment
It has been the position of the Lawyers Professional Responsibility Board and the Office of
Lawyers Professional Responsibility for over a decade that surreptitious recording of
conversations by a lawyer constitutes unprofessional conduct. This position is consistent with
that announced by the ABA Committee on Ethics and Professional Responsibility in Formal
Opinion 337 (August 10, 1974). It is also the position held by the majority of state ethics
authorities who have addressed the issue. The ABA and other state ethics authorities recognize
that although secret recording is not illegal (provided one of the parties to the conversation
consents to the recording), such conduct is inherently deceitful and violates the profession's
standards prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule
8.4 (c), Rules of Professional Conduct and DR 1-102(A)(4), Code of Professional Responsibility.
The committee agrees that in most instances secret recording violates these standards.
The exceptions provided for in this opinion recognize that in certain limited circumstances, the
interests served by surreptitious recordings outweigh the interests protected by prohibiting such
conduct through professional standards. For example, a lawyer who is the subject of a criminal
threat ought not be subject to discipline for secretly recording the threat. The "in connection
with the lawyer's professional activities" language is intended to limit application of the opinion
to those situations where a lawyer is representing a client or is representing him or herself in a
legal matter.

Another exception is secret recording in the criminal prosecution area where such conduct has
become a recognized law enforcement tool provided it is done within constitutional
requirements. See e.g., ABA Formal Opinion 337 at page 3. The committee determined,
however, that such an exception should also be recognized for lawyers engaged in the defense of
a criminal matter. See also, Arizona Opinion No. 90-02; Tennessee Ethics Opinion 86-F-14 (a),
July 18,1986); and Kentucky Opinion E-279 (Jan. 1984). Creating an exception only for
prosecutors could create an imbalance raising potential constitutional problems. See e.g., Kirk v.
State, 526 So.2d 223, 227 (La. 1988) (court found disparity between permitting prosecutors to
secretly record and prohibiting defense lawyers was impermissible denial of equal protection).
The exception provided to government lawyers engaged in civil law enforcement similarly
recognizes that to effectively protect the public, surreptitious recording is a necessary law
enforcement tool. In certain areas such as consumer fraud, false advertising, deceptive trade
practices and charitable solicitation, there may be few, if any, alternatives to surreptitious
recording for effective enforcement. The exception also recognizes that during the investigative
stage, a government lawyer may not be able to determine with certainty whether the violations
are civil, criminal or both.
Finally, because surreptitious recording with the consent of one of the parties is not illegal, the
committee determined that a lawyer should not be prohibited from advising a client about the
legality or admissibility of such a recording. This exception is not intended, however, to permit
non-lawyer employees or agents of the lawyer to record conversations in violation of this
opinion. See Rule 5.3, Minnesota Rules of Professional Conduct.