Can a lawyer advise a divorce client to secretly tape-record the client's telephone conversations with the client's spouse?

Plain-English summary

An attorney asked whether he could advise a client in a divorce action to record the client's telephone conversations with the client's spouse. The committee said an attorney may not advise a client to tape-record the client's conversations with a spouse.

The committee grounded the answer in Rule 8.4(d), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation, explaining that this preserves the traditional high standards of fairness and candor in the practice of law. It noted that prior advisory opinions had prohibited an attorney from recording conversations with others without their consent (citing SC Bar Advisory Opinion 83-1 and several ABA informal opinions), and that the South Carolina Supreme Court had held that participating with a client in a scheme to entrap and secretly record a family-court judge violated the predecessor rule (In re Warner). Applying these authorities, the committee concluded that no attorney should record, cause to be recorded, counsel a client to record, or assist a client to record any conversation without the consent or prior knowledge of all parties to the conversation, citing supporting opinions from Hawaii, Virginia, and Arizona.

Currency note

This opinion was issued in 1991, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Can a lawyer advise a divorce client to secretly record the spouse's phone calls?

A: The committee said no; an attorney may not advise a client to tape-record the client's conversations with a spouse.

Q: Why is advising secret recording prohibited?

A: The committee said secret recording without the consent or prior knowledge of all parties is conduct involving deceit, prohibited by Rule 8.4(d), which preserves fairness and candor in the practice of law.

Q: Does the prohibition cover only the lawyer's own recording?

A: The committee said no; a lawyer should not record, cause to be recorded, counsel a client to record, or assist a client to record any conversation without all parties' consent or prior knowledge.

Background and rules framework

The opinion interprets Rule 8.4(d) (misconduct involving dishonesty, fraud, deceit, or misrepresentation), corresponding to Model Rule 8.4, and follows a line of advisory opinions and the South Carolina Supreme Court's decision in In re Warner treating surreptitious recording as inconsistent with a lawyer's duty of candor.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 8.4(d) / Model Rule 8.4: a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Cases:

• In re Warner, 286 S.C. 461, 335 S.E.2d 91 (1985), participating in a scheme to entrap and secretly record a judge violated the predecessor rule.

Other opinions cited:

• SC Bar Advisory Opinion 83-1; ABA Informal Opinions 1008, 1009, and 337: recording conversations without consent.

See also

• SC Bar Ethics Op. 92-17: Advising on Secret Recording
• SC Bar Ethics Op. 08-13: Recording as a Private Litigant

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-91-14/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 91-14

Attorney A wants to know if he can advise his client to record an attorney advise a client in a divorce action to record the client's telephone conversations with the client's spouse?

Summary:
An attorney may not advise a client to tape record the client's conversations with his spouse.

Opinion:
To preserve the traditional high standards of fairness and candor which characterize the practice of law, Rule of Professional Conduct 8.4(d) prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. In accordance with Rule 8.4(d), prior advisory opinions have prohibited an attorney from tape recording conversations with other persons without their consent (See SC Bar Advisory Opinion 83-1 (9/84); ABA Informal Opinions 1008 and 1009 (10/67); ABA Informal Opinion 337 (8/74). Furthermore, the SC Supreme Court held that participation with a client in a scheme to first entrap and then secretly record a conference with a family court judge violated DR-1-102(A)(4). In re Warner, 286 S.C. 461, 335 S.E. 2d 91 (1985). (See also In the Matter of An Anonymous Member of the South Carolina Bar, SC Supreme Court Advance Sheets, 5/7/91.).

Applying the above rules in this matter, the answer is clear that no attorney should record, cause to be recorded, counsel a client to record or assist a client to record any conversation without the consent or prior knowledge of all parties to the conversation (See Hawaii Supreme Court Disciplinary Board, Formal Opinion 30, 11/30/88; Gunter v. Virginia State Bar, Virginia Supreme Court No. 890473, 11/10/89; Arizona State Bar Committee on Rules of Professional Conduct, Opinion 88-8, 10/24/88).