Ezel / Ethics Opinions / OSB
OSB September 2015

Can an Oregon lawyer secretly record a phone call or an in-person conversation without telling the other person?

Short answer: It depends on the recording law. The opinion concludes a lawyer may record an Oregon phone call without notice because state law allows one-party recording, but may not secretly record an in-person conversation, because Oregon law requires all participants to know of the recording; violating the recording statutes would breach the conduct rules.

Apply this to your situation

This page answers the general question as of 2015. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2015
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 Not binding precedent.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 as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

Lawyer A proposes to tape-record a telephone conversation with a person in Oregon without informing that person or using any beep or tone signaling a recording device. Lawyer B proposes to record a private, in-person conversation with a person in Oregon without informing that person. The opinion addresses whether each lawyer may make the recording, and answers Lawyer A yes, qualified, and Lawyer B no.

The opinion explains that recording a call or in-person conversation in Oregon is regulated by state and federal statutes and the cases interpreting them (citing ORS 165.540 and 18 USC sections 2510 to 2521), so sometimes recording is permitted and sometimes it is not. As a general rule, Oregon law allows one party to a telephone conversation to record it without notice to or consent of the other person. In-person conversations, by contrast, may not be recorded unless all participants know or have notice that the conversation is being recorded, citing Checkley v. Boyd for an extensive discussion.

On the ethics overlay, the opinion concludes that a lawyer who makes a recording in knowing disregard of statutory prohibitions would violate Oregon RPC 3.3(a)(5), which bars knowingly engaging in illegal conduct, and points to Oregon RPC 8.4(a)(2), making it misconduct to commit a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness. Where the substantive law does not prohibit a recording, and absent conduct that would affirmatively lead a person to believe no recording would be made, the lawyer may record. The opinion replaces OSB Formal Ethics Op. No. 2005-74.

In practice

This opinion was issued in 2015, after Oregon's adoption of the current Rules of Professional Conduct, but readers should confirm the current recording statutes before relying on it, since the conduct rules here track the underlying recording law. The opinion holds that the ethics answer follows the statute: a one-party-permissible phone recording is allowed, while an undisclosed in-person recording is not, and a knowing statutory violation becomes a conduct-rule violation. Per the opinion, the analysis turns on what the recording statutes permit, plus the absence of any affirmative conduct misleading the other person about recording. Verify the current text of ORS 165.540 and the conduct rules before relying on any specific point.

Common questions

Q: Can an Oregon lawyer record a phone call without telling the other person?

A: Yes, qualified. The opinion concludes that Oregon law generally lets one party to a telephone conversation record it without notice, so the lawyer may do so absent a statutory prohibition.

Q: Can a lawyer secretly record an in-person conversation?

A: No. The opinion concludes that under Oregon law in-person conversations may not be recorded unless all participants know or have notice of the recording.

Q: What happens if a lawyer records illegally?

A: It becomes a conduct violation. The opinion concludes that recording in knowing disregard of the statutes violates Oregon RPC 3.3(a)(5) (knowingly engaging in illegal conduct), and may implicate Oregon RPC 8.4(a)(2).

Background and rules framework

The opinion interprets Oregon RPC 3.3(a)(5) (knowingly engaging in illegal conduct) and Oregon RPC 8.4(a)(2) (committing a criminal act reflecting adversely on fitness), corresponding to Model Rules 3.3 and 8.4, as overlays on the substantive recording statutes (ORS 165.540; 18 USC sections 2510 to 2521).

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 3.3(a)(5) (knowingly engaging in illegal conduct)
  • Oregon RPC 8.4(a)(2) / Model Rule 8.4 (criminal act reflecting adversely on fitness)

Statutes:

  • ORS 165.540 (obtaining contents of communications)
  • 18 USC sections 2510 to 2521 (federal wiretap statutes)

Cases:

  • Checkley v. Boyd, 198 Or App 110, 107 P3d 651 (2005) (discussion of recording law)

Other opinions cited:

  • OSB Formal Ethics Op. No. 2005-74 (replaced by this opinion)

See also

Source

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