May a lawyer secretly tape-record interviews with potential witnesses, and interview them without disclosing that it is to gather facts for a possible lawsuit?

Plain-English summary

An attorney asked whether he would act unethically by interviewing potential witnesses and tape-recording the interviews without telling the witnesses they were being recorded or that the interviews were to ascertain facts for possible lawsuits. The committee treated this as two issues: the secret recordings and the undisclosed purpose.

On secret recording, the committee followed ABA Formal Opinion 337 (1974), which (except for prosecutors acting within strict statutory and constitutional limits) treated secret recording as unethical, even though such recording is probably not unlawful (U.S. v. White). The committee read SCRA 1986, Rule 16-804(C) (no dishonesty, fraud, deceit, or misrepresentation) to be violated, and found support in earlier ABA informal opinions construing old Canon 22's candor-and-fairness principle as requiring that all parties to a recorded conversation be aware of the recording. Noting that nearly all states agreed, the committee adopted the rule for New Mexico at least to the extent that it is unethical for a lawyer, by silence, to impliedly represent that he was not recording the interview. It observed that recording is lawful in New Mexico with one party's consent (Section 30-12-1(C); see Rule 16-404), but emphasized the duties to be truthful in statements to others (Rule 16-401) and to correct an unrepresented person's misunderstanding of the lawyer's role (Rule 16-403). The committee expressly declined to opine on whether non-lawyer agents may secretly record, or on recordings other than fact-gathering witness interviews; its view was limited to the witness interview described, which it found an implicit misrepresentation if not disclosed.

On the second issue, the committee said its answer flowed from the first: the lawyer should not act deceptively, and if the witnesses are unlikely to appreciate they are being interviewed by a lawyer pursuing potential claims, the lawyer should disclose that he is a lawyer and whom he represents (Rule 16-403). Without knowing the exact language the lawyer would use or the witnesses' sophistication, the committee could not opine on whether the intended course would be ethical. The opinion was approved by a divided committee, five members to three.

Currency note

This opinion was issued in 1988, under the New Mexico Rules of Professional Conduct effective January 1, 1987 (SCRA 1986, Rules 16-804, 16-401, 16-403, and 16-404). It predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes), and views on secret recording have shifted in many jurisdictions since. 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: Could a lawyer secretly record an interview with a witness?

A: The divided committee concluded it is unethical for a lawyer, by silence, to impliedly represent he was not recording a fact-gathering witness interview, treating secret recording as an implicit misrepresentation under Rule 16-804(C).

Q: Does it matter that secret recording is legal in New Mexico?

A: The committee acknowledged recording is lawful with one party's consent but concluded legality does not control the ethics question, emphasizing the duties of truthfulness (Rule 16-401) and to correct an unrepresented person's misunderstanding of the lawyer's role (Rule 16-403).

Q: Must the lawyer tell witnesses why he is interviewing them?

A: The committee concluded that if witnesses are unlikely to realize they are being interviewed by a lawyer pursuing potential claims, the lawyer should disclose that he is a lawyer and whom he represents, as a matter of candor.

Q: Did the opinion address non-lawyers recording, or recordings other than witness interviews?

A: No. The committee expressly declined to opine on whether non-lawyer agents may secretly record or on recordings that are not fact-gathering witness interviews.

Background and rules framework

The opinion applied SCRA 1986, Rule 16-804(C) (dishonesty, fraud, deceit, or misrepresentation), Rule 16-401 (truthfulness in statements to others), Rule 16-403 (dealing with an unrepresented person and correcting a misunderstanding of the lawyer's role), and Rule 16-404 (respect for the rights of third persons). These correspond to current Model Rules 8.4(c), 4.1, and 4.3.

Citations and references

Rules of Professional Conduct:

• Rule 16-804(C) (dishonesty, fraud, deceit, or misrepresentation); Rule 16-401 (truthfulness); Rule 16-403 (unrepresented persons); Rule 16-404 (rights of third persons)

Statutes:

• N.M. Stat. Ann. § 30-12-1(C) (1984) (one-party consent to recording)

Cases:

• U.S. v. White, 401 U.S. 745 (1971), legality of secret recording

Other opinions cited:

• ABA Formal Opinion 337 (1974); ABA Informal Opinions 1008 and 1009 (1967)

See also

• NM Ethics Op. 1987-11: Disclosing a Settlement Overpayment Error

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1988/1988-6.pdf

Original opinion text

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

Advisory Opinion 1988-6
An attorney asks whether he would be acting unethically were he to interview potential witnesses, tape-recording the interviews, without telling the interviewees that they were being tape-recorded or that the interview was being conducted for the purpose of ascertaining facts for use in possible lawsuits. There are two issues here: (1) the secret tape-recordings and (2) the interview without stating the purpose.
1. The ABA Committee on Ethics and Professional Responsibility has considered the question of whether an attorney may secretly record conversations and has stated that, with the exception of prosecutors acting within strict statutory and constitutional limitations, secret recording is unethical. ABA Formal Opinion 337 (1974). The committee considered the fact that it is probably not unlawful to secretly record conversations. See U.S. v. White, 401 U.S. 745 (1971). Rules like SCRA 1986, Rules of Professional Conduct 16-804(C), however, state that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. It was the view of the ABA Committee that secretly recording conversations violated this rule.
Support was found for this result in two prior informal opinions of the committee. ABA Informal Opinion 1008 (1967); ABA Informal Opinion 1009 (1967). These opinions construed the problem under old Canon 22, which stated that the conduct of a lawyer before the court and with other lawyers should be characterized by candor and fairness. Candor and fairness indicate that, when making a recording of conversations, all parties to the conversation should be aware of that fact. The fact that the literal words of the canon only applied to the court and other attorneys was not seen as limiting. A lawyer should operate with candor and fairness toward all.
Additional support for the result was found in a survey of state opinions on the subject. According to ABA Opinion 337, all states save one had stated that secret recordings constitute a breach of an attorney's ethical obligations. We agree with these opinions and believe they should represent the rule in New Mexico at least to the extent that they consider it unethical for a lawyer, by his silence, to impliedly represent that he was not recording the interview with the witness. We note that it is not unlawful to secretly record conversations in New Mexico as long as the consent of one of the parties is present. N.M. Stat. Ann. § 30-12-1(C) (1984). See SCRA 1986, Rules of Professional Conduct 16-404. Nonetheless, the Rules of Professional Conduct emphasize that a lawyer should be truthful in his statements to others, SCRA 1986, Rules of Professional Conduct 16-401, and go so far as to require a lawyer to correct any misunderstanding an unrepresented person has as to the lawyer's role when the lawyer has reason to know that the unrepresented person may misunderstand the lawyer's role, SCRA 1986, Rules of Professional Conduct 16-403.
We express no opinion on whether nonlawyers, acting as agents of the lawyer, may secretly record or on whether lawyers may secretly record conversations that are not interviews with witnesses made with a view toward ascertaining the facts. Our view, however, is that it is an implicit misrepresentation to record the type of witness interview about which inquiry is made without informing the witness that the interview is being recorded.
2. Our opinion on the second issue flows from our opinion on the first. The lawyer should not act in a deceptive manner with the witnesses. If the witnesses are unlikely to appreciate that they are being interviewed by a lawyer with a view toward potential claims, the lawyer should inform them that he is a lawyer and who he represents as a matter of candor. See Rule 16-403. Without knowing the exact language the lawyer intends to use or the sophistication of the potential witnesses, however, the committee is unable to give an opinion on whether the lawyer's intended course of action would be ethical.
[THE FOREGOING OPINION WAS APPROVED BY A DIVIDED COMMITTEE, WITH FIVE MEMBERS APPROVING THE OPINION AND THREE MEMBERS OPPOSED.]