Can a lawyer secretly tape record telephone or in-person conversations with opposing counsel without telling them the conversation is being recorded?

Plain-English summary

The inquirer wanted to systematically tape record conversations with opposing counsel without telling them, and asked whether doing so complied with the ethics rules. The committee answered no, and said its conclusion was the same whether the conversations were by telephone or in person.

The committee relied on its earlier N.Y. City 80-95, which held that secret recording of conversations by attorneys is generally improper under DR 1-102(A)(4) (conduct involving dishonesty, deceit, fraud, or misrepresentation), and on N.Y. City 836 (1958), which had found lawyer-to-lawyer taping inconsistent with the candor and fairness expected among lawyers. It noted its analysis assumed the taping was not itself illegal, since lawyers may not engage in illegal conduct (DR 7-102(A)(7), (8)). The committee aligned itself with the ABA (Formal Op. 337) and the New York State Bar (Op. 328), and expressly rejected the contrary approach of bodies that treat secret taping as permissible where it is lawful in the jurisdiction and no affirmative misrepresentation about recording is made. The committee limited its opinion to the attorney-to-attorney context and to the facts presented, leaving open whether a different conclusion might follow on different facts or extenuating circumstances.

Currency note

This opinion was issued in 1995, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. The treatment of surreptitious recording has continued to evolve in New York and elsewhere since this opinion. 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 Treat this page as historical context, not current guidance.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: Can a lawyer secretly record a phone or in-person conversation with opposing counsel?

A: The opinion concluded no; the lawyer must inform the adversary that the conversation is being recorded before doing so.

Q: Why did the committee treat undisclosed lawyer-to-lawyer taping as improper?

A: Per the opinion, it relied on N.Y. City 80-95 holding such secret recording generally improper under DR 1-102(A)(4) as conduct involving dishonesty, deceit, fraud, or misrepresentation.

Q: Does it matter that secret recording may be legal where it occurs?

A: The committee rejected the view that lawfulness plus no affirmative misrepresentation makes secret taping ethical; it found undisclosed attorney-to-attorney recording improper regardless.

Background and rules framework

The opinion applied New York Code DR 1-102(A)(4) (dishonesty, deceit, fraud, or misrepresentation) and DR 7-102(A)(7)-(8) (not engaging in or counseling illegal conduct), against the backdrop of New York Penal Law eavesdropping provisions. The analysis corresponds to ABA Model Rule 8.4 (misconduct).

Citations and references

Rules of Professional Conduct:

• New York Code DR 1-102(A)(4), DR 7-102(A)(7), DR 7-102(A)(8) (applied in the opinion)
• MR 8.4 (misconduct)

Statutes:

• New York Penal Law 250.00, 250.05 (eavesdropping)

Other opinions cited:

• N.Y. City 80-95 and 836 (1958): secret attorney recording improper
• ABA Formal Op. 337 (1974); N.Y. State 328 (1974): condemning undisclosed recording

See also

• NYC Bar Formal Op. 1995-4: Pre-Signing Blank Forms and False Statements
• NYC Bar Formal Op. 1995-13: Non-Reporting Agreements in Civil Settlements
• ISBA Ethics Op. 704: Opposing a Former Traffic Client on the Same Accident

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1995-10-secret-taping-conversations-between-lawyers-and-adversary-counsel/