Can a Mississippi lawyer secretly record a phone call, advise a client to record others, or use recordings a client made without consent?

Plain-English summary

The Committee addressed three scenarios: a lawyer recording threatening and harassing calls from a lawyer who was formerly opposing counsel; a lawyer asked by a domestic-case client for advice about "bugging" the home phone to record the client's husband; and a client who had already secretly recorded conversations and asked how the lawyer could use them.

On a lawyer recording a conversation, the opinion follows Netterville v. Mississippi State Bar, under which secret recordings are not unethical when, in context, the act does not rise to dishonesty, fraud, deceit, or misrepresentation, and are not per se unethical if the information sought is of a nature that would reasonably suggest to the other person that it might be recorded for future use. Quoting Attorney M v. The Mississippi Bar, the opinion notes a lawyer is generally not bound to keep the confidences of non-clients, and that such recordings do not per se violate Rule 8.4. The opinion concludes the lawyer should at a minimum identify himself, his representation, and his purpose, and refrain from false or misleading statements about whether the conversation is being recorded; it does not condone the practice but concludes it is not unethical within those limits.

On advising a client to record others, the opinion concludes the legality of recording is a question of criminal law on which the Committee expresses no opinion. To the extent the client's secret recording would violate a criminal statute, Rule 1.2 prohibits the lawyer from advising or assisting it, and doing so would also violate Rule 8.4; the lawyer should discuss the legal consequences and possible illegality with the client. To the extent the conduct is not criminal, the opinion concludes the lawyer may ethically advise the client to make the recordings.

On using recordings the client made without the lawyer's knowledge, the opinion concludes admissibility is a question of law, not ethics (citing National Life & Accident Insurance Co. v. Miller). It concludes the lawyer may use information from the tapes to further investigate the case and in settlement negotiations, because Rules 1.1 and 1.3 require thorough and diligent representation, while expressing no opinion on evidentiary use.

In practice

Under this opinion, a Mississippi lawyer who records a conversation without the other party's consent does not violate the rules so long as the recording does not involve dishonesty or deceit and the lawyer does not make false statements about whether it is being recorded. The opinion ties the lawyer's ability to advise a client to record others to the underlying criminal law: Rule 1.2 bars advising conduct the lawyer knows is criminal, so the lawyer must address the possible illegality with the client. When a client has already made recordings, the opinion treats their evidentiary admissibility as a legal question but concludes the lawyer may use the information to investigate and in settlement under Rules 1.1 and 1.3.

Common questions

Q: Can a lawyer secretly record a phone call in Mississippi?

A: The opinion concludes it is not unethical if the recording does not rise to dishonesty, fraud, deceit, or misrepresentation and the information is of a type the other person would reasonably expect could be recorded for future use (citing Netterville).

Q: Can a lawyer advise a client to secretly record someone else?

A: Per the opinion, only to the extent it is lawful; if the recording would violate a criminal statute, Rule 1.2 bars the lawyer from advising or assisting it, and the lawyer should discuss the possible illegality with the client.

Q: Can a lawyer use recordings the client made without consent?

A: The opinion concludes the lawyer may use the information to investigate the case and in settlement negotiations under Rules 1.1 and 1.3, but treats admissibility as a question of law on which it expresses no opinion.

Background and rules framework

The opinion applies Mississippi Rules of Professional Conduct 1.2 (a lawyer shall not counsel or assist a client in conduct the lawyer knows is criminal or fraudulent), 8.4 (misconduct, including dishonesty and assisting violations), and 1.1 and 1.3 (competence and diligence), which correspond to the same-numbered Model Rules, against Mississippi case law on surreptitious recording.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 1.2 (scope; no counseling or assisting crime or fraud) (cf. Model Rule 1.2)
• MRPC 8.4 (misconduct; dishonesty, fraud, deceit) (cf. Model Rule 8.4)
• MRPC 1.1, 1.3 (competence and diligence) (cf. Model Rules 1.1, 1.3)

Cases:

• Netterville v. Mississippi State Bar, 397 So. 2d 878 (Miss. 1981), surreptitious recording not per se unethical.
• Attorney M v. The Mississippi Bar, 621 So. 2d 220 (Miss. 1992), lawyer not bound to keep non-clients' confidences.
• National Life & Accident Insurance Co. v. Miller, 484 So. 2d 329 (Miss. 1985), admissibility of tape recordings.

See also

• MS Bar Ethics Op. 205: Disclosing Perjury to a Court
• MS Bar Ethics Op. 215: Ex Parte Contact With Former Employees
• MS Bar Ethics Op. 213: Reporting a Non-Client's Crime

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/203/
• Original PDF: https://www.msbar.org/media/1411/et-op-203-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 203

OF THE MISSISSIPPI BAR

RENDERED October 30, 1992

AMENDED April 06, 2013

RESPECT FOR RIGHTS OF THIRD PERSON - An attorney may ethically record telephone conversations of an opposing party without his knowledge or consent provided that such recording does not suggest dishonesty, fraud, deceit or misrepresentation and the information recorded is of the type one might reasonably expect to be taken down for future use.

PRACTICE OF LAW - An attorney may not ethically advise a client to secretly record conversations between parties if this would violate a criminal statute.

PRACTICE OF LAW - An attorney may ethically use telephone conversations secretly taped by his client without his knowledge to the extent permitted by law.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion on the following factual scenario:

l) Attorney A is receiving a series of threatening and harassing telephone calls from Attorney B who was formerly opposing counsel in a lawsuit. Under what circumstances can A ethically record these conversations, with and without B's knowledge or consent?

2) Attorney Y represents Jane Doe in a domestic case. Doe indicates that her husband frequently uses their home telephone to call his girlfriend. Doe asks for Attorney Y's advice about "bugging" the telephone and recording her husband's conversation. Under what circumstances may Attorney Y ethically advise the client to secretly record conversations between third parties without their knowledge or consent?

3) Client Doe describes the same facts as in No. 2 except that she informs Attorney Y that she has already recorded several conversations between her husband and his girlfriend without his knowledge or consent and without the knowledge of Attorney Y. What are Attorney Y's ethical obligations in so far as the use of these recordings as evidence, using information therefrom to further investigate the case and using the recordings as part of settlement negotiations?

1. RECORDING CONVERSATIONS WITH THIRD PARTIES

The general rule governing the surreptitious tape recording of conversations was established by the Mississippi Supreme Court in Netterville v Mississippi State Bar, 397 So.2d 878 (Miss. 1981). In that case, the Court determined that such tape recordings are not unethical when the act, considered within the context of the circumstances, does not rise to the level of dishonesty, fraud, deceit or misrepresentation. 397 So.2d at 883. Specifically, the Court held that secret recordings are not per se unethical if the information requested [by the attorney during the telephone conversation] is of such a nature as to reasonably import to the person called the probability, if not certainty, it would be taken down in some manner for future use. Id.

More recently, in Attorney M v. The Mississippi Bar, the Court stated:

Generally speaking, an attorney is not ethically bound to keep the confidences of any person other than his client. Absent some express or implicate assurance to the contrary, a person who speaks to an attorney with whom he has no attorney/client relationship must realize that his statements are subject to publication.

621 So.2d 220, 224 (Miss. 1992). The Court went on to state that such recordings do not per se violate Rules 8.4 (conduct involving dishonesty, fraud, deceit or misrepresentation or conduct prejudicial to administration of justice).

The Committee is of the opinion that at a minimum, the lawyer should fairly identify himself, his representation and his purpose, and should refrain from making false or misleading statements concerning whether the conversation is being recorded. Although the Committee does not condone or recommend the surreptitious recording of telephone conversations with third parties, it is not unethical to do so within the limits set forth above.

2. ADVISING A CLIENT TO SECRETLY RECORD TELEPHONE CONVERSATIONS

The legality vel non of recording telephone conversations is a question of criminal law and the Committee expresses no opinion on whether the facts presented would result in violation of a criminal statute. To the extent the secret tape recording of conversations by the client of her spouse's conversations violates any criminal law or statute, the lawyer would be prohibited from advising the client to engage in such activity. Rule 1.2 governs this situation and provides:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that a 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 the client to make a good faith effort to determine the validity, scope, meaning or application of the law.

In fact, if the attorney did advise the client to commit an illegal act, it would not only run afoul of Rule 1.2, but would also constitute a violation of Rule 8.4 which makes it an act of professional misconduct for an attorney to violate the rule or to knowingly assist or induce another to do so or do so through the acts of another. If the client proposes this course of conduct, the attorney should discuss the consequences of committing such an act with the client and advise the client as to its possible illegality.

To the extent the facts presented are not in violation of a criminal law or statute, it is the opinion of the Committee that the attorney may ethically advise the client to make the proposed tape recordings.

3. USE OF SECRETLY OBTAINED RECORDINGS OF TELEPHONE CONVERSATIONS

The use of tapes secretly obtained by the client without the attorney's knowledge is essentially an evidentiary matter. Although the Supreme Court has stated that "the value of most tape recordings in ferreting out truth is beyond question, and this Court has observed that the admission of such records into evidence is sometimes 'fully justified'", National Life and Accident Insurance Co. v. Miller, 484 So. 2d 329, 338 (Miss.1985), the Committee is of the opinion that this question is one of law as opposed to ethics.

As to whether the attorney may make use of information contained in the tapes to further investigate the case or in settlement negotiations, it is the opinion of the Committee that such information may be used for these purposes. Rules 1.1 and 1.3 require an attorney to zealously represent his client and to prepare a case with thoroughness. Once again, the Committee expresses no opinion on the extent to which such materials may be used for evidentiary purposes, if any.