May an Oklahoma lawyer record a conversation without telling the other people that it is being recorded?

Plain-English summary

The committee was asked whether it is unethical for an Oklahoma lawyer, or someone acting on the lawyer's behalf, to record conversations without the other persons' consent. It concluded that lawyers have the same rights as other citizens and may record conversations to which they are a party. The committee noted that one-party recording is legal under federal and Oklahoma law (18 U.S.C. § 2511(d); Okla. Stat. tit. 13 § 176.4), but stressed that lawfulness does not automatically make conduct ethical, so the general conduct rules must be applied.

The committee considered ABA Formal Opinion 337 (1974), which had ruled that no lawyer should record any conversation without the consent or prior knowledge of all parties, based on Canon 9 of the old Code and DR 1-102(A)(4). The committee found Opinion 337 overly broad and concluded that undisclosed recording is not per se deceptive: lawyers document conversations routinely, and recording is merely a technological convenience that documents more accurately than memory or notes. It read Rule 4.4 (respect for the rights of third persons; no means with no substantial purpose other than to embarrass, delay, or burden a third person) to support permitting lawful recording without consent, citing Wolfram's Modern Legal Ethics, and stated that to the extent Rule 4.4 is inconsistent with ABA Opinion 337, the rule should overrule the ABA statement.

The committee made the result situation-specific. While recording will be permissible in most situations, some will dictate a different result: if a lawyer, by words or conduct, entices someone into believing a conversation is confidential and for that person's ears only, then records it and disseminates a transcription, the lawyer has engaged in a deceptive practice. And because a lawyer is bound to be truthful under Rule 8.4(c), if asked about recording, the lawyer must be candid and truthful.

Currency note

This opinion was issued in 1994 under the Oklahoma Rules of Professional Conduct (effective July 1, 1988), before the later Ethics 2000-based amendments to those Rules. The ABA itself later revisited Formal Opinion 337 in Formal Opinion 01-422 (2001). Treat this page as historical context, not current guidance.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 an Oklahoma lawyer secretly record a call they are on?

A: Generally yes. The committee concluded a lawyer who is a party to the conversation may record it without the other parties' consent, and that this is not per se deceptive.

Q: Did Oklahoma follow the ABA's blanket ban?

A: No. The committee found ABA Formal Opinion 337 overly broad and concluded that Rule 4.4 should override it to the extent of any inconsistency.

Q: When does recording become unethical?

A: The committee said it is deceptive if the lawyer leads someone to believe a conversation is confidential and then records and disseminates it, and that a lawyer asked about recording must answer truthfully under Rule 8.4(c).

Background and rules framework

The opinion interpreted Rule 4.4 (respect for the rights of third persons) and Rule 8.4(c) (the duty of truthfulness) of the Oklahoma Rules of Professional Conduct, contrasting them with the former Code's Canon 9 and DR 1-102(A)(4) and with ABA Formal Opinion 337 (1974). These correspond to Model Rules 4.4 and 8.4.

Citations and references

Rules of Professional Conduct:

• Oklahoma RPC 4.4 / Model Rule 4.4: a lawyer shall not use means with no substantial purpose other than to embarrass, delay, or burden a third person.
• Oklahoma RPC 8.4(c) / Model Rule 8.4(c): a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Statutes:

• 18 U.S.C. § 2511(d) (one-party consent under federal wiretap law).
• Okla. Stat. tit. 13 § 176.4 (Supp. 1989) (Oklahoma one-party recording).

Other opinions cited:

• ABA Formal Opinion 337 (1974): blanket prohibition on undisclosed recording; the committee declined to follow it.

See also

• ABA Formal Op. 01-422: Secret electronic recording by lawyers
• Okla. Bar Ethics Op. 304: Ex parte communication with an adverse party's physician
• Okla. Bar Ethics Op. 301: Donating client files to a historical or educational institution

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-307/

Original opinion text

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

Adopted March 5, 1994

INQUIRY

Is it unethical for an Oklahoma licensed attorney or anyone acting on his/her behalf, while engaged in the practice of law, to record conversations with persons without obtaining the consent of those persons to the recording?

OPINION

Lawyers have the same rights as other citizens, and may therefore record conversations to which they are a party.

The Rules of Professional Conduct do not expressly address whether an attorney may or may not record conversations with other persons. There is no question that, as long as the attorney is a party to the conversation, tape recording without consent is legal under both federal and Oklahoma law. See 18 U.S.C. § 2511(d); Okla. Stat. tit. 13 §176.4 (Supp. 1989). The fact that the practice is lawful, however, does not automatically render the activity ethical. Rather, the general rules pertaining to attorney conduct must be applied in determining whether such practice is ethical.

Nearly twenty years ago, the Ethics Committee of the American Bar Association ruled that “no lawyer should record any conversation whether by tape or other electronic device without the consent or prior knowledge of all parties to the conversation.” ABA Comm. on Ethics and Professional Responsibility, Formal Op. 337 (1974). The ABA opinion was extremely broad, prohibiting undisclosed recording of any conversation with any party, even though such activity is not unlawful under federal or state law.1 The Committee based its opinion on Canon 9 of the Code of Professional Responsibility, entitled “A Lawyer Should Avoid Even the Appearance of Professional Impropriety.” In addition, the Committee cited DR 1-102(A)(4) of the Code of Professional Responsibility, which states that “A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

We believe Formal Opinion 337 is overly broad and that it is not per se deceptive. Therefore, it is not unethical for an attorney to record conversations with persons from whom the attorney has not obtained consent. Attorneys document conversations routinely. Recordation is merely a technological convenience, providing a more accurate means of documenting rather than relying on one’s memory, notes, shorthand, transcription, etc. for recall.

Morever [sic], the Rules lend support for the proposition that legal recording without consent is permissible. Under Rule 4.4, entitled “Respect for Rights of Third Persons,” “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.” To the extent that there was no similar rule under the old Code of Professional Responsibility and that this rule is inconsistent with ABA Opinion 337, Rule 4.4 should overrule the ABA statement. C. Wolfram, Modern Legal Ethics, § 12.4.4 (1986); Adams, “Tape Recording Telephone Conversations – Is It Ethical for Attorneys?,” 15 J. Legal Prof. 171 (1990).

Whether recording without the knowledge or consent of the other party is deceptive and unethical is situation specific. While in most situations, recording will be permissible, some situations will dictate a different result. For example, if a lawyer by words or conduct entices someone into believing a conversation is confidential and for his or her ears only, yet the lawyer records the conversation and disseminates a transcription to others, then the lawyer has engaged in a deceptive practice. Moreover, a lawyer is bound to be truthful. Rule 8.4(c). Thus, if inquiry is made regarding tape recording, then the lawyer must be candid and truthful.

1 The ABA opinion did recognize one exception to the general prohibition applying under “extraordinary circumstances” for attorneys associated with law enforcement efforts.