May a Missouri lawyer secretly record a conversation with a nonclient when the lawyer is a participant?

Plain-English summary

Missouri's informal opinions had previously prohibited a lawyer from secretly recording a conversation even when the lawyer participated. Formal Opinion 123 changed that approach and adopted the reasoning of ABA Formal Opinion 01-422.

A participating lawyer could record a nonclient without notice, subject to other circumstances. The lawyer could not record when doing so was illegal in the jurisdiction, and could not lie, mislead, or imply that the conversation was not being recorded.

A current-client conversation required notice under the duties of communication and loyalty. The lawyer could give notice at the time or previously explain that conversations were recorded from time to time without a separate warning, but a client who objected to general notice had to receive specific notice for each recording.

Currency note

Formal Opinion 123 was issued in 2006 and expressly made legality in the jurisdiction a condition of its holding. Verify current recording law, Missouri rules, and later authority before relying on the opinion.

In practice

Under the opinion, secret recording of a nonclient was not inherently dishonest when the lawyer participated. Independent illegality, affirmative deception, and the lawyer-client relationship each changed the result.

Common questions

Q: Did the lawyer have to be a party to the conversation?

A: Yes. The opinion's permission addressed a conversation in which the lawyer participated.

Q: Could the lawyer record where local law prohibited it?

A: No. The opinion prohibited any recording that would be illegal.

Q: Could the lawyer say that no recording was occurring?

A: No. Dishonesty, deception, misleading statements, or misrepresentation about recording violated Rule 4-8.4(c).

Q: What notice did a current client receive?

A: Notice at the time or a prior general disclosure; if the client objected to general notice, the lawyer had to warn specifically at each recording.

Background and rules framework

Rule 4-8.4(c) prohibited dishonesty, fraud, deceit, and misrepresentation. Rule 4-1.4 and the duty of loyalty required notice when the conversation involved a current client.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-8.4(c)
• Rule 4-1.4

Other opinions cited:

• Missouri Informal Advisory Opinions 970022 and 950074
• ABA Formal Opinion 337 (1974), withdrawn in 2001
• ABA Formal Opinion 01-422 (2001)

See also

• Nebraska Ethics Op. 06-07: Undisclosed recording of nonclients
• Missouri Formal Op. 127: Electronic client files
• Alaska Ethics Op. 2001-1: Client confidentiality

Source

• Landing page: Missouri Formal Opinion 123

Original opinion text

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

Missouri Supreme Court Advisory Committee
Formal Opinion 123

SECRET ELECTRONIC RECORDING OF A CONVERSATION WITH A NONCLIENT IS NOT A VIOLATION, ABSENT OTHER CIRCUMSTANCES

The issue to be addressed is whether an attorney violates the Rules of Professional Conduct by secretly recording a conversation.

Missouri informal advisory opinions1 have stated that an attorney may not secretly record a conversation, even if the attorney is a party to the conversation. This approach originated long ago and was, historically, the approach taken by the ABA2 and other jurisdictions. However, the ABA3 and many other jurisdictions have changed their approach to this issue. The Advisory Committee is of the opinion that the approach in Missouri should change as well. The Advisory Committee agrees with the reasoning of ABA Formal Opinion 01–422.

An attorney may record a conversation, to which the attorney is a party, without notifying the other parties to the conversation, unless other factors are present including, but not limited to: (1) laws prohibiting the recording in the jurisdiction in which the recording would occur, (2) the attorney states or implies that the conversation is not being recorded, or (3) the conversation involves a current client of the attorney.

In some jurisdictions laws prohibit secret recording, even if the person recording is a party to the conversation. An attorney may not record a conversation, secretly or otherwise, if the act of recording would be illegal.

An attorney may not engage in dishonesty, deception, misleading statements, or misrepresentation about whether the attorney is recording the conversation. Such conduct would violate Rule 4–8.4(c).

If the recording is of a conversation with a current client, the attorney must give some notice to the client that the attorney is, or may be, recording the conversation. Giving this notice is necessary under the attorney's duty to communicate with the client4 and is consistent with the attorney's duty of loyalty to the client. This notice could be given by disclosure at the time of the recording. The attorney could also have previously informed the client that the attorney tape records conversations from time to time and will not necessarily notify the client each time. However, if the client objects to lack of specific notice, the attorney must give specific notice to the client at the time of recording.

/s/ John C. Dods March 8, 2006
John C. Dods, Chair Date

1 For example, Informal Advisory Opinions 970022 and 950074

2 ABA Formal Opinion 337 (1974) (Withdrawn 2001)

3 ABA Formal Opinion 01–422 (2001)

4 Rule 4–1.4