Can a lawyer advise a client about recording a conversation with someone who is not told it is being recorded?

Plain-English summary

The committee was asked to clarify N.Y. State 328 (1974) on the ethics of recording conversations without notice, with particular attention to criminal matters and to clients who ask whether such recording is permissible. Opinion 328 had concluded that, except in special situations, it is improper for a private-practice lawyer to record a conversation electronically without first advising the other party, because even lawful one-party recording offends the fairness and candor expected of lawyers. ABA 337 (1974) reached the same result under DR 1-102(A)(4) (dishonesty, fraud, deceit, or misrepresentation). The committee noted neither opinion squarely addressed whether a lawyer who may not record could still advise a client about doing so.

The committee separated two further concerns. Beyond fairness and candor, a lawyer may not engage in or assist illegal or fraudulent conduct (DR 7-102(A)(7), (8)); so where one-party recording is itself illegal (as in some states), counsel may not participate in or assist it, and FCC rules require a warning tone on interstate calls. But it found that federal law (Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. 2511) and New York Penal Law sections 250.00 and 250.05 both except recording where one party consents. Drawing on the ABA Standards for Criminal Justice, the committee said lawyers in a criminal matter, for the prosecution or the defense, may ethically record a conversation with one party's consent except where the purpose is to commit a criminal, tortious, or injurious act.

Turning to the question asked, the committee held that advising a client is different from the lawyer doing the recording. Opinion 328 had not addressed a client in a civil matter asking counsel about the propriety of the client (not counsel) recording without the other party's consent. Under DR 7-101(A), counsel should not fail to pursue a client's lawful objectives, and the committee found no constitutional bar to one-party monitoring and no congressional or New York prohibition of party monitoring beyond the FCC warning-tone policy. Citing N.Y. State 455 (1976), it said that where a lawyer does no more than advise on the legal character and consequences of an act, there is no impropriety. Counsel may also, consistent with EC 7-8, point out non-legal considerations, for example that recording an employee who has confessed wrongdoing, while legal, may be unfair, weighing the social value of gathering evidence against the harm to privacy. The question was answered in the affirmative, subject to those qualifications.

Currency note

This opinion was issued in 1979, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (the duties discussed here now appear at Rule 1.2(d) (not assisting crime or fraud), Rule 2.1 (the lawyer as adviser), and Rule 8.4(c) (dishonesty)). The wiretapping and eavesdropping statutes cited have been amended since 1979, and bar opinions in many states have continued to revisit a lawyer's own surreptitious recording. 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 advise a client about recording a conversation the other party is not told about?

A: Yes, where one-party recording is lawful. The committee held that advising a client on the legal character and consequences of recording is proper and distinct from the lawyer secretly recording.

Q: Can the lawyer secretly record a conversation himself?

A: The committee left N.Y. State 328's disapproval of a private-practice lawyer's own secret recording in place as a matter of fairness and candor, while recognizing exceptions, including one-party recording in criminal matters not aimed at a criminal, tortious, or injurious purpose.

Q: What if recording without all-party consent is illegal where it happens?

A: Then counsel may not participate in or assist it. The committee noted that some states bar one-party recording, and FCC rules require a warning tone on interstate calls, so DR 7-102(A)(7) and (8) would prohibit assisting unlawful recording.

Background and rules framework

The opinion drew on DR 1-102(A)(4) (dishonesty), DR 7-101(A) (pursuing lawful client objectives), DR 7-102(A)(7) and (8) (not assisting illegal or fraudulent conduct), and EC 7-8 (the lawyer's advising role), reading them against the federal and New York statutes that permit one-party recording. The closest current Model Rule analogues are Rule 1.2(d) (not counseling or assisting crime or fraud), Rule 2.1 (lawyer as adviser), and Rule 8.4(c) (dishonesty).

Citations and references

Rules of Professional Conduct:

• MR 1.2(d) (not assisting crime or fraud)
• MR 2.1 (lawyer as adviser)
• MR 8.4(c) (dishonesty)
• NY EC 7-8, DR 1-102(A)(4), DR 7-101(A), DR 7-102(A)(7), (8)

Statutes:

• Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. sec. 2511(2)(c), (d)
• N.Y. Penal Law secs. 250.00, 250.05
• Ill. Ann. Stat. ch. 38, sec. 14-2 (one example of an all-party-consent state)

Other opinions cited:

• N.Y. State 328 (1974): clarified here; a lawyer's own secret recording offends fairness and candor
• N.Y. State 455 (1976): advising on the legal character of an act is proper
• ABA 337 (1974): no lawyer should record without all parties' knowledge
• ABA Inf. 1320 (1975): lawyer-instigated recording of an uninformed party

See also

• NY State Bar Op. 522: Advising a client to refuse a breathalyzer test
• NY State Bar Op. 530: Turning over physical evidence held for a client

Source

• Landing page: https://nysba.org/opinion-515/