What ethical issues arise when a New York lawyer uses AI to record, transcribe, or summarize conversations with non-clients?

Plain-English summary

Opinion 2026-2 extends the principles in NYC Bar Opinions 2024-5 and 2025-6 beyond attorney-client conversations. It concludes that Rule 8.4 prohibits surreptitious recording of calls, including videoconferences, with third parties. A lawyer must disclose the intention to record and obtain permission from every participant. Rule 1.1 competence includes understanding how the AI tool records, transcribes, summarizes, stores, and shares information, as well as knowing how to turn off the recording function.

The opinion identifies additional consequences of using these tools. Recording can create confidentiality and privilege issues, add work to review transcripts and summaries for accuracy, and leave the lawyer without control over security, accuracy review, or access when another participant uses that participant's own AI tool. It also notes that some recording technology may exclude a person from the discussion if the person does not consent. For these reasons, the opinion states that the default should be not to record absent a good reason in a particular instance.

For co-counsel and aligned counsel, recordings and summaries must not be accessible beyond the lawyers and others involved in the joint representation if privilege is to be preserved. The opinion also identifies a joint-defense or common-interest agreement as a place to specify whether calls will be recorded and what will happen after an inadvertent recording.

For prospective clients, recording may document the information obtained and whether an attorney-client relationship was formed, but a record accessible within the firm may spread prospective-client information and create a Rule 1.18 conflict for the consulted lawyer and the firm. The opinion again states that the default should be not to record absent a good reason in the particular instance.

For opposing counsel, settlement discussions and mediation may involve evidentiary privileges and confidential client information. For witnesses, recordings may document compliance with Rules 3.4, 4.2, and 4.3 or serve an evidentiary purpose, but may also be discoverable, jeopardize confidentiality, create unfavorable evidence out of context, or place work product at risk. The opinion says the potential risks ordinarily outweigh the benefits for witness conversations.

The same framework applies to employees and agents, including investigators, whose conduct implicates Rules 4.2, 4.3, and 8.4(a). Although a recording may document how the employee or agent dealt with a witness or third party, the opinion says preservation may jeopardize confidentiality and privilege, and questions may arise about how consent was obtained. It states that the default should be that these conversations are not recorded.

In practice

Under this opinion, using AI to record a non-client conversation requires disclosure of the intended recording and permission from every participant. The lawyer's Rule 1.1 duty includes understanding the tool's recording controls and its handling of recordings, transcripts, and summaries. The opinion applies those general principles separately to co-counsel, prospective clients, opposing counsel, witnesses, and employees or agents.

The opinion's default is not to use AI to record, transcribe, or summarize a non-client conversation absent a good reason in the particular instance. It notes that a different balance may apply when a lawyer with a hearing impairment considers AI recording and transcription useful to competent representation, subject to obtaining the other participants' consent and considering countervailing factors.

Common questions

Q: May a lawyer use an AI tool to record a non-client conversation without telling the other participants?

A: No. The opinion states that Rule 8.4 bars surreptitious recording of conversations, including videoconferences, with third parties. The lawyer must disclose the intention to record and obtain permission from all participants.

Q: What does competence require when a lawyer uses an AI recording tool?

A: The opinion ties Rule 1.1 competence to understanding how the tool records, transcribes, summarizes, stores, and shares information. Competence also includes knowing how to disable the recording function so a conversation is not recorded inadvertently.

Q: What concerns arise when speaking with a prospective client?

A: A recording may document what information was obtained and whether an attorney-client relationship was formed. The opinion also says that a record accessible within the firm can create information-sharing and conflict concerns under Rule 1.18 for the consulted lawyer and the firm, so its stated default is not to record absent a good reason in the particular instance.

Q: How does the opinion address conversations with witnesses?

A: A recording may document what was said and compliance with Rules 3.4, 4.2, or 4.3, or may have an evidentiary use. The opinion says recordings may also be discoverable, jeopardize confidentiality, create unfavorable evidence out of context, or place work product at risk, and it concludes that the potential risks ordinarily outweigh the benefits.

Q: What if opposing counsel or another participant uses that participant's own AI tool?

A: The opinion says the lawyer may lack control over security, may be unable to review the transcript or summary for accuracy, and may lack access to the resulting material when preparing strategy or for trial. These are among the challenges the opinion carries forward from Opinion 2025-6.

Q: Does the opinion recognize circumstances that may weigh in favor of recording?

A: Yes. A footnote states that a different balance may apply when a lawyer with a hearing impairment believes AI recording and transcription is useful in fulfilling the duty of competent representation. The opinion still identifies consent from the other participants and countervailing considerations as part of that situation.

Background and rules framework

The opinion applies New York Rules 1.1, 1.18, 3.4, 4.2, 4.3, and 8.4 to AI-assisted recording, transcription, and summarization of conversations with people who are not clients. Rule 1.1 supplies the technology-competence framework; Rule 1.18 governs prospective-client information and conflicts; Rules 3.4, 4.2, and 4.3 apply to witness and third-party communications; and Rule 8.4, including Rule 8.4(a), addresses undisclosed recording and conduct carried out through another person.

The committee builds on NYC Bar Opinion 2024-5, which addressed generative AI in legal practice, and Opinion 2025-6, which addressed AI recording, transcription, and summarization of client conversations. Opinion 2026-2 applies the earlier general principles to several non-client settings and describes its list of issues as non-exhaustive.

Citations and references

Rules of Professional Conduct:

• N.Y. RPC 1.1 and Comment [8] (competence and technology)
• N.Y. RPC 1.18 and Rule 1.18(d)(2) (prospective clients)
• N.Y. RPC 3.4 (fairness to opposing party and counsel)
• N.Y. RPC 4.2 (communications with represented persons)
• N.Y. RPC 4.3 (communications with unrepresented persons)
• N.Y. RPC 8.4 and Rule 8.4(a) (misconduct and conduct through another)

Other opinions cited:

• NYC Bar Formal Opinion 2024-5: generative AI in the practice of law
• NYC Bar Formal Opinion 2025-6: AI recording, transcription, and summarization of client conversations

See also

• NYC Bar Op. 2025-6: AI recording and transcribing client conversations
• NYC Bar Op. 2024-5: generative AI in legal practice
• NYC Bar Op. 2003-02: undisclosed taping of conversations

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-2026-2-ethical-use-of-ai-for-recording-transcribing-and-summarizing-non-client-conversations/
• Original PDF: https://www.nycbar.org/wp-content/uploads/2026/08/20221672-AiRecordingEthicsOpinion.pdf