Ezel / Ethics Opinions / NYC-BAR
NYC-BAR 2003

Can a lawyer secretly tape record a conversation without telling the other party it is being recorded?

Short answer: Not as a matter of routine practice; undisclosed taping is improper because it smacks of trickery. The opinion permits it only where the lawyer has a reasonable basis to believe that disclosure would impair the pursuit of a generally accepted societal good.

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This page answers the general question as of 2003. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2003
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

The opinion revisits the City Bar's earlier position that all undisclosed taping by lawyers in civil and commercial contexts is unethical. It does so against the backdrop of the ABA's shift: for more than twenty-five years the ABA treated undisclosed taping by non-law-enforcement lawyers as unethical (ABA Formal Op. 337 (1974)), but in Formal Opinion 01-422 (2001) the ABA reversed course, concluding that undisclosed taping is not in and of itself unethical unless prohibited by the law of the jurisdiction.

The Committee concludes that its prior opinions, like the ABA's 1974 opinion, swept too broadly, but it regards the ABA's new position as an overcorrection. It reaffirms the view first expressed in NY City 1980-95 that undisclosed taping "smacks of trickery and is improper as a routine practice." At the same time, the opinion recognizes that there are circumstances in which undisclosed taping should be permissible because it advances a generally accepted societal good, and that a lawyer should not be subject to discipline where the lawyer has a reasonable basis for believing such circumstances exist. The opinion states that NY City 1980-95 and 1995-10 are modified accordingly.

The opinion grounds the limit on routine undisclosed taping in the Code's prohibition on conduct involving dishonesty, fraud, deceit, or misrepresentation (DR 1-102(A)(4)) and the duties bearing on a lawyer's representation of a client (DR 7-102(A)).

In practice

Under the New York Code as it stood at the time, the opinion holds that a lawyer may not adopt undisclosed taping as a routine practice, but may engage in it where the lawyer has a reasonable basis to believe that disclosing the recording would impair the pursuit of a generally accepted societal good. The opinion frames this as a fact-specific judgment rather than a categorical permission or prohibition.

This opinion applies the former New York Code of Professional Responsibility (DR numbering). New York replaced the Code with the Rules of Professional Conduct effective April 1, 2009; the deceit provision of DR 1-102(A)(4) now corresponds to Rule 8.4(c). New York's modern treatment of undisclosed recording, and any controlling state or federal wiretap statute, should be checked before relying on this opinion.

Common questions

Q: Can a New York lawyer routinely record calls without telling the other party?

A: No. The opinion concludes that undisclosed taping as a matter of routine practice is improper because it smacks of trickery, reaffirming the view first stated in NY City 1980-95.

Q: Is undisclosed taping ever permitted under this opinion?

A: Yes. The opinion permits undisclosed taping where the lawyer has a reasonable basis for believing that disclosure of the taping would impair the pursuit of a generally accepted societal good.

Q: How does this opinion treat the ABA's position?

A: The opinion notes that the ABA reversed ABA Formal Op. 337 in Formal Op. 01-422 (2001), holding undisclosed taping is not inherently unethical. The Committee agrees its own prior opinions swept too broadly but regards the ABA's new position as an overcorrection.

Q: Did this opinion change earlier City Bar opinions?

A: Yes. The opinion states that NY City 1980-95 and 1995-10 are modified to reflect the limited circumstances in which undisclosed taping is permissible.

Background and rules framework

The opinion interprets DR 1-102(A)(4) of the former New York Code, which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation (the analog of Model Rule 8.4(c)), together with the provisions of DR 7-102(A) on a lawyer's conduct in representing a client. It situates the question within the national debate prompted by the ABA's withdrawal of Formal Op. 337 and its adoption of the contrary position in Formal Op. 01-422.

Citations and references

Rules of Professional Conduct:

  • MR 8.4(c) (dishonesty, fraud, deceit, or misrepresentation) / NY DR 1-102(A)(4)
  • MR 4.1 (truthfulness in statements to others) / NY DR 7-102(A)(5)

Other opinions cited:

  • ABA Formal Op. 337 (1974): undisclosed taping by lawyers is unethical (later withdrawn)
  • ABA Formal Op. 01-422 (2001): undisclosed taping is not inherently unethical
  • NY City 1980-95 and 1995-10: prior City Bar opinions, modified by this opinion

See also

Source

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