Can an Ohio lawyer secretly record a conversation without the other person's consent?

Plain-English summary

The Board reconsidered its 1997 position (Advisory Opinion 97-3), which had treated surreptitious recording by lawyers as unethical in "routine circumstances" under former DR 1-102(A)(4), subject to exceptions for prosecutors and law enforcement, criminal defense, and "extraordinary circumstances." That position had drawn on the ABA's 1974 Formal Opinion 337. The Board noted the ABA reversed course in Formal Opinion 01-422 (2001), concluding that where nonconsensual recording is legal in the jurisdiction, a lawyer does not violate the Model Rules merely by recording without the other parties' consent.

The Board explained that under Ohio law a recording is legal if the person recording is a party or one party consents (R.C. 2933.52), placing Ohio among the majority "one-party consent" jurisdictions, and that recording for the purpose of committing a crime or tortious or injurious act is not protected. It surveyed the legal and ethical landscape across states and reviewed Ohio's single lawyer-discipline case on the subject, Ohio State Bar Assn. v. Stern, where the court dismissed a dishonesty charge against a lawyer who secretly videotaped disciplinary investigators, declining to treat surreptitious recording as per se misconduct. It also reviewed out-of-state discipline cases, observing that violations turned on additional facts such as lying about the recording or recording a client or judge for the lawyer's own benefit.

Because Ohio adopted the Model-Rules-based Rules of Professional Conduct in 2007 and so many exceptions to a flat prohibition had been recognized, the Board concluded that ABA Formal Opinion 01-422 provides better guidance than Opinion 97-3. It held that legal surreptitious recording by Ohio lawyers is not a per se violation of Prof. Cond. R. 8.4(c), while emphasizing that the acts associated with a recording may still constitute misconduct, and that in general lawyers should not record clients or prospective clients without consent. The Board withdrew Opinion 97-3.

In practice

The opinion holds that, under Prof. Cond. R. 8.4(c) as construed in 2012, secretly recording a conversation is not itself misconduct when the recording is legal where it occurs, which in Ohio means compliance with the one-party-consent statute, R.C. 2933.52. Per the opinion, the analysis shifts to the surrounding conduct: a lawyer may still be disciplined under Rule 8.4(c) or other rules where the recording involves dishonesty (such as lying about it) or an improper purpose. The opinion states that Ohio lawyers in general should not record clients or prospective clients without their consent, and it withdrew the contrary guidance of Opinion 97-3.

Common questions

Q: Is it unethical for an Ohio lawyer to record a call without telling the other person?

A: The opinion concluded it is not per se unethical under Rule 8.4(c) if the recording is legal where it occurs; Ohio's one-party-consent statute (R.C. 2933.52) generally makes a party's recording legal.

Q: Does that mean any secret recording is fine?

A: The opinion concluded no; the acts associated with a recording may still constitute misconduct under Rule 8.4(c) or other rules, for example lying about the recording or recording for an improper purpose.

Q: Can a lawyer secretly record a client?

A: The opinion concluded that, in general, Ohio lawyers should not record conversations with clients or prospective clients without their consent.

Q: What happened to the older Ohio opinion on this?

A: The opinion withdrew Advisory Opinion 97-3, which had treated surreptitious recording as unethical in routine circumstances under the former Code.

Background and rules framework

The opinion interprets Ohio Prof. Cond. R. 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) (Model Rule 8.4(c)), applying Ohio's one-party-consent recording statute, R.C. 2933.52, and adopting the reasoning of ABA Formal Opinion 01-422 in place of former Advisory Opinion 97-3 and ABA Formal Opinion 337.

Citations and references

Rules of Professional Conduct:

• Ohio Prof. Cond. R. 8.4(c) (dishonesty, fraud, deceit, or misrepresentation) (Model Rule 8.4)

Statutes:

• R.C. 2933.52 (one-party-consent recording; improper-purpose exception)

Cases:

• Ohio State Bar Assn. v. Stern, 103 Ohio St.3d 491, 2004-Ohio-5464, surreptitious recording not treated as per se misconduct
• Attorney M. v. The Mississippi Bar, 621 So.2d 220 (Miss. 1992), recording did not amount to dishonesty on the facts

Other opinions cited:

• ABA Formal Op. 01-422 (2001): nonconsensual recording where legally permitted, withdrawing ABA Formal Op. 337 (1974)
• Ohio BPC Op. 97-3 (1997) (withdrawn by this opinion): surreptitious recording under the former Code

See also

• Ohio BPC Op. 2010-003: Grievance Withdrawal as a Malpractice Settlement Term

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_12-001.pdf

Original opinion text

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

BOARD OF COMMISSIONERS ON GRIEVANCES & DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
614.387.9370 888.664.8345
RICHARD A. DOVE FAX: 614.387.9379 MICHELLE A. HALL
SECRETARY www.supremecourt.ohio.gov SENIOR COUNSEL

                                   OPINION 2012-1
                                  Issued June 8, 2012

                  Surreptitious (Secret) Recording by Lawyers

SYLLABUS: A surreptitious, or secret, recording of a conversation by an Ohio
lawyer is not a per se violation of Prof.Cond.R. 8.4(c) (conduct involving
dishonesty, fraud, deceit, or misrepresentation) if the recording does not violate
the law of the jurisdiction in which the recording takes place. The acts associated
with a lawyer’s surreptitious recording, however, may constitute misconduct
under Prof.Cond.R. 8.4(c) or other Rules of Professional Conduct. In general,
Ohio lawyers should not record conversations with clients or prospective clients
without their consent. Advisory Opinion 97-3 is withdrawn.

QUESTION PRESENTED: May an Ohio lawyer engage in the surreptitious
recording of a conversation if the recording is permitted by the law of the
jurisdiction where the recording occurs?

APPLICABLE RULE: Rule 8.4(c) of the Ohio Rules of Professional Conduct

OPINION: Before the Board is a request to articulate its current view on
surreptitious, or secret, recording of conversations by lawyers. The Board last
addressed surreptitious recording 15 years ago in Advisory Opinion 97-3. In that
opinion, which was issued under the now-superseded Code of Professional
Responsibility (Code), the Board advised that in “routine circumstances”
surreptitious recording by lawyers in legal representations is unethical. See Ohio
Sup. Ct., Bd. of Comm’rs on Grievances and Discipline, Op. 97-3 (June 13, 1997).
The Board based its conclusion on DR 1-102(A)(4), the Code provision that
subjected lawyers to discipline for engaging in “conduct involving dishonesty,
fraud, deceit, or misrepresentation.” Id. at 3.
Op. 2012-1 2

    In Opinion 97-3, the Board also recognized three widespread exceptions to

its characterization of surreptitious recording. First, the Board found that
prosecutors and law enforcement lawyers acting pursuant to statutory, judicial,
or constitutional authority could engage in surreptitious recording. Second, the
Board indicated that criminal defense lawyers were permitted to use
surreptitious recordings to further their clients’ constitutional rights to zealous
representation. Finally, the Board identified an “extraordinary circumstances”
exception for situations such as when lawyers must defend themselves or their
clients against wrongdoing. With all three exceptions, the Board concluded that
the lawyer had the burden of demonstrating that the surreptitious recording did
not amount to conduct involving dishonesty, fraud, deceit, or misrepresentation.

   Opinion 97-3 was based in part on the American Bar Association’s (ABA)

stance on surreptitious recording at that time. In 1974, the ABA opined that “no
lawyer should record any conversation whether by tapes or other electronic
device, without the consent or prior knowledge of all parties to the
conversation.” ABA Commt. on Ethics and Prof’l Responsibility, Formal Op. 337
(Aug. 10, 1974). The only exception noted by the ABA was one for prosecutors
and law enforcement lawyers. Interestingly, the ABA’s opinion was issued one
day after Richard Nixon resigned from the presidency as a result of the
Watergate wiretapping scandal.

   In 2001, the ABA readdressed surreptitious recording by lawyers in

Formal Opinion 01-422. In that opinion, the ABA reversed its position and
withdrew Formal Opinion 337. The ABA now concludes that “*w+here
nonconsensual recording of conversations is permitted by the law of the
jurisdiction where the recording occurs, a lawyer does not violate the Model
Rules [of Professional Conduct] merely by recording a conversation without the
consent of the other parties to the conversation.” ABA Commt. on Ethics and
Prof’l Responsibility, Formal Op. 01-422 (June 24, 2001), at 7.

    In Ohio, recording of wire, oral, and electronic communications is legal if

the person instituting the recording is a party to the communication or one of the
parties to the communication has given prior consent. R.C. 2933.52. Ohio joins
the majority of states and the federal government in this “one-party consent”
approach. See Bast, Surreptitious Recording by Attorneys: Is It Ethical?, 39 St.
Mary’s L.J. 661, 681 (2008). In a minority of states, recording conversations is
illegal except when all of the parties to the conversation give permission for the
recording. Id. These states are known as “all-party consent” states. Id.
Op. 2012-1 3

    Turning from the legality of surreptitious recording to the question of

whether such recording is ethical, 13 states take the position that surreptitious
recording by lawyers is not per se misconduct. Id. at 711. In ten states,
surreptitious recording is both illegal and unethical for lawyers. Id.
Additionally, in nine states surreptitious recording is unethical, but allowed in
certain circumstances. Id. at 703, 711. Four states evaluate surreptitious
recording on a case-by-case basis, and 13 states have not expressed an opinion on
the issue. Id. at 711.1 In sum, 26 states permit surreptitious recording by lawyers
in at least some situations. Id. at 703.2

   The Supreme Court of Ohio (Court) has addressed surreptitious recording

in only one lawyer discipline case. In Ohio State Bar Assn. v. Stern, 103 Ohio St.3d
491, 2004-Ohio-5464, a lawyer secretly videotaped a meeting with investigators
from the Office of Disciplinary Counsel. The lawyer also lied to the investigators
about videotaping their meeting. The sole charge of misconduct against the
lawyer was that the recording and accompanying lie constituted conduct
involving dishonesty, fraud, deceit, or misrepresentation. The Court recognized
Opinion 97-3, but dismissed the charge of misconduct, finding that the bar
association had not proven that the videotaping involved dishonesty, fraud,
deceit, or misrepresentation. Id. at ¶ 17, 38. The Court indicated that its
dismissal was based upon the unique facts of the case including the effects that a
major head injury had on the lawyer’s conduct and the ulterior motives of the
grievants. Id. at ¶ 24-39. Three justices dissented, stating that the lawyer should
have received a public reprimand for lying to the investigators. Id. at ¶ 40-42.
Neither the majority nor the dissent found surreptitious recording to be per se
misconduct.

   In addition to Stern, the Board reviewed disciplinary cases from other

states involving surreptitious recording. Of a number of reported cases
considered by the Board, only one held that a lawyer’s surreptitious recording
did “not rise to the level of dishonesty, fraud, deceit, or misrepresentation.”
Attorney M. v. The Mississippi Bar, 621 So.2d 220, 224 (Miss. 1992). In Attorney M.,
the Supreme Court of Mississippi reviewed the conduct of a lawyer representing
the plaintiff in a medical malpractice action. Two physicians had treated the

1
In two states, recording of telephone conversations is not per se unethical, but recording of face-to-face
conversations is either illegal or has not been addressed. Id. at 714.
2
Ohio is not included in these totals. Although based on the Bast law review article from 2008, the
Board’s independent research revealed that the Bast totals appear to remain accurate.
Op. 2012-1 4

plaintiff. The lawyer recorded two telephone conversations with one of the
physicians without consent. Because the lawyer was taking the physician’s
statement during the calls, the physician testified that he assumed the
conversations were being taped, and there was no evidence that the lawyer
intended to use the tapes for an improper purpose, the court dismissed the
allegation of conduct involving dishonesty, fraud, deceit, or misrepresentation.
Id. at 225.

   In the other cases considered, surreptitious recording was found to be

misconduct. However, all of the cases finding a disciplinary violation either rely
on the ABA’s 1974 opinion or involve extenuating facts such as the lawyer lying
about the recording, the subject of the recording being a client or judge, or a
motive for the recording that benefits the lawyer’s own interests. See Midwest
Motor Sports v. Arctic Cat Sales, Inc., 347 F.3d 693 (8th Cir. 2003) (recording of
adverse party’s employees conducted through false representations); Matter of
Wetzel, 143 Ariz. 35, 691 P.2d 1063 (1985) (lawyer recorded disciplinary counsel
and opposing counsel for the purpose of future impeachment); People v. Smith,
778 P.2d 685 (Colo. 1989) (lawyer recorded a judge and used the statement out of
context in a judicial grievance); Commt. on Prof’l Ethics and Conduct of the Iowa
State Bar v. Mollman, 488 N.W.2d 168 (Iowa 1992) (lawyer recorded client without
consent to secure leniency in the lawyer’s own criminal case); Commt. on Prof’l
Ethics and Conduct of the Iowa State Bar v. Plumb, 546 N.W.2d 215 (Iowa 1996)
(recording of judge in chambers); In re Crossen, 880 N.E.2d 352 (Mass. 2008) and
In re Curry, 880 N.E.2d 388 (Mass. 2008) (creating and recording fake job
interview with former law clerk in attempt to have judge disqualified); The
Mississippi Bar v. Attorney ST, 621 So.2d 229 (Miss. 1993) (lawyer lied about the
recording); Matter of an Anonymous Member of South Carolina Bar, 304 S.C. 342,
404 S.E.2d 513 (1991) (relies on former ABA opinion), modified by In the Matter of
the Attorney General’s Petition, 308 S.C. 114, 417 S.E.2d 526 (1992) (recognizing
exception for law enforcement investigations); In re PRB Docket No. 2007-046, 989
A.2d 523 (Vt. 2009) (misleading statements about whether conversation was
being recorded).3 In these out-of-state disciplinary cases, the approach is similar
to Attorney M. in that misconduct is determined based on additional facts
connected to the recording. Only the Supreme Court of South Carolina in Matter
of an Anonymous Member of South Carolina Bar found that surreptitious recording
is inherently unethical.

3
See also Wilbourn III v. Wilbourn, 2010-CA-00014-COA (Miss. Ct. App. 2012) (surreptitious recording
by trustee of co-trustee found improper when purpose of recording was to have co-trustee declared
incompetent and removed).
Op. 2012-1 5

   Taking into account the current ABA position on surreptitious recording,

R.C. 2933.52, other states’ ethics opinions and disciplinary cases involving
surreptitious recording, and the Stern decision, the Board believes it is time to
deviate from the position taken in Opinion 97-3. On February 1, 2007, the Court
rescinded the Code and adopted the Ohio Rules of Professional Conduct. Unlike
the Code, the Ohio Rules are based in large part on the ABA’s Model Rules of
Professional Conduct. Accordingly, the Board finds that the ABA’s
interpretations of its Model Rules carry at least some weight in the application of
the Ohio Rules. After careful study of ABA Formal Opinion 01-422, the Board
concludes that it is a well-reasoned approach that provides better guidance for
Ohio lawyers than Opinion 97-3 has done.

   Like the Code, the Ohio Rules do not explicitly prohibit surreptitious

recordings of conversations by lawyers. In Opinion 97-3, the Board found that
surreptitious recording is misconduct in “routine circumstances” because it
involves dishonesty, fraud, deceit, or misrepresentation as prohibited under DR
1-102(A)(4). Prof.Cond.R. 8.4(c) has replaced DR 1-102(A)(4), and Rule 8.4(c) also
states that it is misconduct for a lawyer to engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation. Surreptitious, or secret,
recording by a party to a conversation is legal in Ohio unless it is conducted for
an improper purpose. R.C. 2933.52.4 Such recordings are used in “widespread
practice by law enforcement, private investigators, and journalists, and the courts
universally accept evidence acquired by such techniques.” ABA Formal Opinion
01-422 at 4. Additionally, public expectations of privacy have changed given
advances in technology and the increased availability of recording equipment.
Id. The public has an almost ubiquitous ability to record others through the use
of smart phones, tablets, and other portable devices. Further, so many
exceptions have been recognized to justify surreptitious recording that it seems
patently unfair to maintain that it is misconduct per se when a lawyer does it. In
Opinion 97-3, the Board identified sweeping exceptions for law enforcement
lawyers, prosecutors, criminal defense lawyers, and in “extraordinary
circumstances.” Other jurisdictions have found exceptions for recordings in
situations involving threats or obscene calls, of witnesses to avoid perjury, for a
lawyer’s self-preservation, when authorized by law or court order, and for
housing discrimination and trademark infringement investigators. Id. A rule

4The recording cannot be for the “purpose of committing a criminal offense or tortuous act in
violation of the laws or Constitution of the United States or [Ohio] or for the purpose of
committing any other injurious act.” R.C. 2933.52(B)(4).
Op. 2012-1 6

with a significant number of variables simply does not provide appropriate
guidance for Ohio lawyers. For all of these reasons, the Board finds that the
general rule should be that legal surreptitious recording by Ohio lawyers is not a
per se violation of Prof.Cond.R. 8.4(c).

   Although the Board is fashioning a new standard for surreptitious

recording by Ohio lawyers, the Board is not in any way indicating that a lawyer
cannot be disciplined for conduct involving such recordings. As demonstrated
by the out-of-state disciplinary cases cited above, the acts associated with a
lawyer’s surreptitious recording may rise to the level of misconduct, including a
violation of Prof.Cond.R. 8.4(c). Examples include lying about the recording,
using deceitful tactics to become a party to a conversation, and using the
recording to commit a crime or fraud.5 Under Prof.Cond.R. 4.4, lawyers also
cannot employ surreptitious recording if it has “no substantial purpose other
than to embarrass, harass, delay, or burden a third person” or is a means of
obtaining evidence that violates the legal rights of a third person. “A lawyer
should use the law’s procedures only for legitimate purposes and not to harass
or intimidate others.” Ohio Rules of Prof’l Conduct, Preamble, ¶ [5].

    In the alternative, as revealed in Stern, the facts and circumstances may

cause the Court to find that a seemingly-deceitful surreptitious recording was
justifiable and not misconduct. The mere act of surreptitiously or secretly
recording a conversation should not be the impetus for a charge of misconduct.
Instead, the totality of the circumstances surrounding the recording must be
evaluated to determine whether a lawyer has engaged in conduct involving
dishonesty, fraud, deceit, or misrepresentation in violation of Prof.Cond.R. 8.4(c).
As eloquently stated by the Supreme Court of Iowa in 1996, “*i+t is not the use of
recording devices, but the employment of artifice or pretense, that truly poses a
threat to the trust which is the bedrock of our professional relationships.” Plumb,
supra, at 217.

   This opinion assumes that a lawyer’s surreptitious recording does not

violate the law of the jurisdiction where the recording takes place. If an Ohio
lawyer chooses to record a conversation in another jurisdiction, the lawyer is
advised to verify that the recording is legal. Once a surreptitious recording
becomes an illegal act, the recording may violate Prof.Cond.R. 4.4 (obtaining

5
However, Prof.Cond.R. 8.4(c) “does not prohibit a lawyer from supervising or advising about lawful
covert activity in the investigation of criminal activity or violations of constitutional or civil rights when
authorized by law.” Prof.Cond.R. 8.4, comment [2A].
Op. 2012-1 7

evidence in violation of a person’s legal rights), 8.4(b) (illegal act reflecting
adversely on honesty or trustworthiness), 8.4(c) (conduct involving dishonesty,
fraud, deceit, or misrepresentation), or 8.4(h) (conduct adversely reflecting on
fitness to practice). In addition, under Prof.Cond.R. 8.5(b), a lawyer may be
subject to the disciplinary rules of another jurisdiction for conduct occurring in
that jurisdiction. Thus, Ohio lawyers are further advised to confirm that a
recording that occurs in another jurisdiction is permissible under that
jurisdiction’s rules of professional conduct.

    On a final note, the Board finds that it must separately address

surreptitious recordings by lawyers of their conversations with clients and
prospective clients. In Formal Opinion 01-422, the ABA stated as follows:
“*a+lthough the Committee is divided as to whether the Model Rules forbid a
lawyer from recording a conversation with a client concerning the subject matter
of the representation without the client’s knowledge, such conduct is, at the least,
inadvisable.” ABA Formal Opinion 01-422 at 8. The Board agrees with the
ABA’s general admonition against surreptitious recording of client
conversations. A lawyer’s duties of loyalty and confidentiality are central to the
lawyer-client relationship, and recording client conversations without consent is
not consistent with these overarching obligations. See Preamble, ¶ [4],
Prof.Cond.R. 1.6, and Prof.Cond.R. 1.7, comment [1]. While there may
occasionally be extraordinary occasions in which a surreptitious recording of a
client conversation would be justified, such as when a lawyer believes a client
plans to commit a crime resulting in death or substantial bodily harm, a lawyer
generally should not record client conversations without the client’s consent.

    If a person is a prospective client as defined in Prof.Cond.R. 1.18(a), a

lawyer’s conversation with that person should also generally not be recorded
without consent. As stated in Prof.Cond.R. 1.8(b), lawyers have a duty not to use
or disclose information revealed during a consultation with a prospective client.
These expectations of trust and confidentiality are similar to those found in the
lawyer-client relationship, and inconsistent with the routine, nonconsensual
recording of prospective client conversations. A person must truly be a
prospective client for the general admonition to apply, however, and a unilateral
communication to a lawyer without a reasonable expectation that the lawyer is
willing to consider a lawyer-client relationship does not make the person
initiating the communication a prospective client. Prof.Cond.R. 1.18, Comment
[2].
Op. 2012-1 8

CONCLUSION: A surreptitious, or secret, recording of a conversation by an
Ohio lawyer is not a per se violation of Prof.Cond.R. 8.4(c) (conduct involving
dishonesty, fraud, deceit, or misrepresentation) if the recording does not violate
the law of the jurisdiction in which the recording took place. Because
surreptitious recording is regularly used by law enforcement and other
professions, society as a whole has a diminished expectation of privacy given
advances in technology, the breadth of exceptions to the previous prohibition on
surreptitious recording provides little guidance for lawyers, and the Ohio Rules
of Professional Conduct are based on the Model Rules of Professional Conduct,
the Board adopts the approach taken in ABA Formal Opinion 01-422. Although
surreptitious recording is not inherently unethical, the acts associated with a
lawyer’s surreptitious recording may constitute a violation of Prof.Cond.R. 8.4(c)
or other Rules of Professional Conduct. Examples of misconduct may include
lying about the recording, using deceitful tactics to become a party to a
conversation, and using the recording to commit a crime or fraud. As a basic
rule, Ohio lawyers should not record conversations with clients without their
consent. A lawyer’s duties of loyalty and confidentiality are central to the
lawyer-client relationship, and recording client conversations without consent is
ordinarily not consistent with these overarching obligations. Similar duties exist
in regard to prospective clients, and Ohio lawyers should also refrain from
nonconsensual recordings of conversations with persons who are prospective
clients as defined in Prof.Cond.R. 1.8(a).

Advisory Opinion 97-3 is withdrawn.

Advisory Opinions of the Board of Commissioners on Grievances and
Discipline are informal, nonbinding opinions in response to prospective or
hypothetical questions regarding the application of the Supreme Court Rules
for the Government of the Bar of Ohio, the Supreme Court Rules for the
Government of the Judiciary, the Ohio Rules of Professional Conduct, the
Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office.