Can a New Mexico lawyer secretly record a witness who has said the interview is off the record?

Plain-English summary

The Ethics Advisory Committee considered whether a lawyer, or someone working for the lawyer, may record a witness interview without the witness's knowledge when the lawyer believes the witness would refuse to be recorded or would not speak accurately if recorded. Under the facts presented, the opinion concluded the answer was no.

The opinion situated the question against the Committee's earlier Formal Opinions 1988-6 and 1996-2, which advised that clandestine recordings (except where expressly permitted) were disfavored if not prohibited, and which had relied on ABA Formal Opinion 337 (1974), later withdrawn by ABA Formal Opinion 01-422. The Committee concluded that the withdrawal of the older ABA opinion did not change its analysis and that it was not inclined to withdraw its own earlier opinions; it reiterated that whether clandestine recording is permissible is very fact-specific. The opinion also acknowledged that under New Mexico law recording a teleconference is lawful so long as one party is aware, but reasoned that lawful conduct is not necessarily ethical.

Applying Rule 16-804(C), the opinion concluded that the lawyer's own premise (that the witness would refuse or give false statements if aware of recording) meant the witness believed the interview was not being recorded. Because the rule's prohibition on dishonesty and deceit covered both acts of commission and omission, the opinion concluded the lawyer would violate Rule 16-804 by recording without disclosure, and could not direct an employee, contractor, or agent to do so, since Rule 16-804(A) forbids violating the Rules "through the acts of another."

Common questions

Q: Could a New Mexico lawyer secretly record a witness who said the interview was off the record?

A: No, under the facts presented. The opinion concluded that where the lawyer knows the witness believes the interview is off the record, secretly recording it deceives the witness and violates Rule 16-804(C).

Q: Did it matter that the recording was legal under New Mexico law?

A: No. The opinion acknowledged that one-party recording is lawful but reasoned that "[i]t does not necessarily follow from the fact that the secret recording of conversations is lawful, that the making of secret recordings by or at the direction of an attorney is ethical."

Q: Could the lawyer have an investigator or staff member record it instead?

A: No. The opinion concluded that Rule 16-804(A) forbids a lawyer from violating the Rules through the acts of another, so the lawyer could not direct an employee, contractor, or agent to make the recording.

Q: Was the opinion an absolute ban on secret recording?

A: No. The opinion stressed that the analysis is very fact-specific and did not mean that under no circumstances would the practice be permissible; it held only that the facts presented did not permit it.

Background and rules framework

The opinion interpreted Rule 16-804 of the New Mexico Rules of Professional Conduct (NMRA 2005), the analog of Model Rule 8.4: subsection (C), prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation, and subsection (A), prohibiting violation of the Rules through the acts of another. It built on the Committee's earlier Formal Opinions 1988-6 and 1996-2 and addressed the withdrawal of ABA Formal Opinion 337 by ABA Formal Opinion 01-422. The opinion expressly confined itself to civil and non-criminal matters, not investigations by prosecutors.

Citations and references

Rules of Professional Conduct:

• Model Rule 8.4 / NM Rule 16-804(C) (dishonesty, fraud, deceit, misrepresentation) and 16-804(A) (violation through acts of another)

Other opinions cited:

• NM Formal Opinions 1988-6 and 1996-2 (clandestine recordings disfavored; fact-specific).
• ABA Formal Opinion 337 (1974), withdrawn by ABA Formal Opinion 01-422.

See also

• ABA Formal Op. 01-422: Secret Electronic Recording by Lawyers
• Alaska Ethics Op. 2003-1: Recording Conversations
• NM Ethics Op. 2008-01: Paying an Expert Witness on a Contingency Fee Basis

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/2005-2006/2005-3.pdf

Currency note

This opinion was issued in 2005, before the State Bar of New Mexico's November 3, 2008 revisions to the Rules of Professional Conduct (the New Mexico adoption of the ABA Ethics 2000 changes). 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.

Original opinion text

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

State Bar of New Mexico
Ethics Advisory Committee
FORMAL ETHICS ADVISORY OPINION

FORMAL OPINION: 2005-03

DATE: November 19, 2005

RE: Ability of Lawyer or Lawyer's Agent to Record Telephone Interview With Witness Who Has Expressed Unwillingness to Speak "On the Record;" Application of NMRA 16-804(C) prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation

DISCLAIMER: The Ethics Advisory Committee is constituted for the purpose of advising inquiring lawyers on the interpretation of the Rules of Professional Conduct, as applied to the inquiring lawyer's duties. The Committee's opinions are not binding, and are intended only to assist lawyers in the course of their conduct.

QUESTION PRESENTED: May a lawyer, or someone under the lawyer's employment or contract, record an interview of a witness, without the witness's knowledge, when the lawyer believes, through expressions from the witness (e.g., an expression by the witness that the interview is "off the record"), that the witness would either refuse to give a recorded statement or would not give an accurate statement if the witness knew that the statement was being recorded?

SHORT ANSWER: No, under the facts of the inquiry.

RULES IMPLICATED: 16-804(C) NMRA 2005.

FACTUAL & HISTORICAL BACKGROUND: This opinion is based upon an inquiry from a lawyer requesting an advisory opinion on whether, in light of ABA Formal Opinion 01-422, a recording can be made of a potential witness. The lawyer states that the witness would either refuse to give a recorded statement, or would not give an accurate statement, if the witness knew that the statement was being recorded. The request is made in a civil dispute setting, outside of the context of a prosecutor or other lawyer involved in the criminal justice system.

ANALYSIS: At the outset, the Committee recognizes that it has published two formal opinions on secret recordings of conversations (Formal Opinions 1988-6 and 1996-2). Both of those opinions made reference to ABA Comm. on Ethics & Professional Responsibility Formal Op. 337 (1974), which was withdrawn by the ABA Committee in its more recent ABA Formal Opinion 01-422. Both of the Committee's earlier opinions advise that clandestine recordings, except where expressly permitted by rule, are disfavored if not prohibited. ABA Formal Opinion 01-422 indicates the ABA Committee's view that the rule has somehow been relaxed over time, despite the lack of amendment to the rule. However, having considered the applicable rules and the facts presented to the Committee, the withdrawal of the older ABA Formal Opinion does not impact this Committee's analysis of the instant request. Nor is this Committee presently inclined to withdraw either Formal Opinion 1988-6 or 1996-2. As set forth particularly in Formal Opinion 1996-2, there may be instances where clandestine recording might be permissible. Analysis of the issue is very fact specific. However, the factual background in this instance does not present a situation in which the Committee believes a clandestine recording would be permitted.

Being fact specific, the Committee's analysis does not consider the application of rules, statutes or case law with regard to the investigation of criminal matters by prosecutors or others involved in the criminal justice system, with regard to which special substantive or procedural provisions regarding secret recordings may apply. Rather, the focus of this opinion is on civil or other non-criminal proceedings and transactional matters, wherein no special rules exist for the practice.

The Committee acknowledges, as the Committee did in Formal Opinion 1996-2, that under New Mexico law, the recording of a teleconference is not unlawful so long one of the parties is aware of the recording. However, the inquiry cannot be based solely on what is legal. As the Committee noted in Formal Opinion 1996-2:

It does not necessarily follow from the fact that the secret recording of conversations is lawful, that the making of secret recordings by or at the direction of an attorney is ethical. The Rules of Professional Conduct impose high standards of honesty and integrity on lawyers. The opinions of other bar committees dealing with the subject reflect great difficulty in deciding the extent to which otherwise lawful conduct may not be permitted within the scope of ethical rules applicable to lawyers.

The Committee also believes that the following questions, set forth in Formal Opinion 1996-2, remain of vital importance as the lawyer considers whether clandestine recording would be permissible:

In considering whether to engage in the secret recording of a conversation with a potential witness, the lawyer is presented with a number of ethical and practical questions. Will the act of recording likely lead to a controversy which could make the lawyer a witness, for example by making the lawyer's conduct or alleged misconduct an issue? Did the lawyer make any false statement to get the witness to talk? Did the lawyer fail to disclose something obvious, fail to make clear the lawyer's role or position in the litigation? Is the witness represented by counsel, or likely to be represented by counsel, in connection with the litigation? Did the lawyer do or say anything which might mislead the witness? Did the lawyer's actions trick or coerce the witness in any way?

In the instant case, the analysis is not so difficult. The lawyer's conclusion, that the witness would either refuse to be interviewed or tell falsehoods if the witness knew the interview was being recorded, indicates that the witness believes the interview is not being recorded by the lawyer. Rule 16-804 NMRA 2005 provides:

It is professional misconduct for a lawyer to:

C. engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

The Committee believes that the misconduct referenced in 16-804(C) includes both acts of commission and omission. Thus, withholding information under certain circumstances may be just as violative of the rule as providing incorrect information.

The lawyer, having reached the conclusion referenced above, would violate Rule 16-804 if the lawyer recorded the interview without the witness's knowledge of the recording. This is because, having reached that conclusion regarding the witness, the lawyer knows that the witness does not anticipate that the interview will be recorded, but instead believes it will be "off the record." Having this knowledge, the lawyer is obligated to tell the witness prior to initiating a recorded interview that the interview will be recorded. Otherwise, the secret recording of the conversation deceives the witness, based on the lawyer's knowledge that the witness would refuse to proceed if the interview were recorded.

Further, the lawyer cannot instruct someone under the lawyer's control to record the interview in the lawyer's stead. Rule 16-804(A) NMRA 2005 defines professional misconduct to include "violat[ion] [of] the Rules of Professional Conduct … through the acts of another." This provision forbids a lawyer's use of third parties, whether employees, contractors or agents, to commit acts that are forbidden to the lawyer.

The Committee recognizes that, as a result of complying with Rule 16-804(C), there is the possibility that efforts to obtain information that would be helpful in litigation or other matters may be impeded. However, the prohibitions of Rule 16-804(C) are mandatory and not merely aspirational. The applicable rules of civil procedure, particularly those involving depositions, may provide the more appropriate method of obtaining or compelling testimony.

CONCLUSION: The Rules of Professional Conduct preclude the secret recording of a witness interview by a lawyer, or anyone acting under the lawyer's control, if such a recording would involve deceiving the witness either by commission or omission. Circumstances that would bar such a recording include, but may not be limited to, instances wherein the witness has made any expression that the witness believes the interview is "off the record" or has indicated that, if a recording were made, no interview would be granted. Despite the withdrawal of ABA Formal Opinion 337, the Committee believes that the prudent New Mexico lawyer will still be hesitant to record conversations without the other party's knowledge and must always consider the obligations placed upon a lawyer by the Rules of Professional Conduct. In so doing, the Committee does not mean to opine that under no circumstances would the practice be permissible. Rather, the analysis remains a very fact specific one.