Can a South Carolina lawyer advise a client to secretly record a conversation, or recommend a company to supply the recording equipment?

Plain-English summary

A client asked his lawyer about secretly tape recording a conversation with his employer to preserve evidence that the employer was pressuring him into improper conduct, to be used if he were fired for refusing. The inquiry asked whether the lawyer could ethically advise the client to make the secret recording, and whether the lawyer could recommend a company that supplies the necessary equipment.

The committee started from Rule 8.4(d), which makes it misconduct to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. It noted that the South Carolina Supreme Court had construed that language to bar an attorney from recording any conversation without the prior knowledge and consent of all parties, regardless of purpose, citing In re An Anonymous Member of the South Carolina Bar, 404 S.E.2d 513 (S.C. 1991); In re Anonymous Member of the South Carolina Bar, 322 S.E.2d 667 (S.C. 1984); and In re Warner, 335 S.E.2d 90 (S.C. 1985) (attorney scheme to entrap and secretly record a Family Court judge). The single exception is recording made with the prior consent or at the request of an appropriate law enforcement agency in a legitimate criminal investigation. The committee then drew a distinction between advising a client that secret recording is legal (for example, interpreting the federal wiretap statute, 18 U.S.C. Section 2511) and instructing or assisting the client to actually record. The first it treated as permissible statutory interpretation, reasoning that a contrary conclusion would prevent lay persons from getting advice about the legality of contemplated conduct. The second it treated as uncertain: a narrow reading of Warner reaches only schemes to record a judge, while a broad reading bars counseling or assisting anyone to secretly record anyone. The committee concluded that until Warner is clarified the area remains uncertain and the prudent course is to give Warner a broad reading.

Currency note

This opinion was issued in 1992, 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 Treat this page as historical context, not current guidance.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 South Carolina lawyer tell a client it is legal to secretly record a conversation?

A: The committee said yes, treating an opinion on whether a statute such as 18 U.S.C. Section 2511 permits secret recording as ordinary statutory interpretation that lay persons are entitled to obtain.

Q: Can the lawyer instruct the client to make the secret recording or supply the equipment?

A: The committee said this is uncertain and, reading In re Warner broadly, may be impermissible; it described a broad reading of Warner as the prudent course until the decision is clarified.

Q: Can a South Carolina lawyer ever secretly record a conversation personally?

A: The committee said no, except when recording with the prior consent or at the request of an appropriate law enforcement agency in a legitimate criminal investigation; otherwise the Supreme Court's cases bar it regardless of purpose.

Background and rules framework

The opinion applied Rule 8.4(d), which corresponds to Model Rule 8.4 (misconduct), as construed by the South Carolina Supreme Court to prohibit recording a conversation without all parties' consent. The analysis turned on the line between advising a client about the legality of conduct and counseling or assisting the client to carry it out, and on the unresolved breadth of In re Warner.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 8.4(d) / Model Rule 8.4: conduct involving dishonesty, fraud, deceit, or misrepresentation is misconduct.

Statutes:

• 18 U.S.C. Section 2511 (Omnibus Crime Control and Safe Streets Act of 1968), cited as an example of a statute a lawyer may interpret for a client.

Cases:

• In re An Anonymous Member of the South Carolina Bar, 404 S.E.2d 513 (S.C. 1991), recording without all parties' consent.
• In re Anonymous Member of the South Carolina Bar, 322 S.E.2d 667 (S.C. 1984).
• In re Warner, 335 S.E.2d 90 (S.C. 1985), scheme to entrap and secretly record a Family Court judge.

See also

• ABA Ethics Op. 01-422: Secret Electronic Recording by Lawyers
• SC Bar Ethics Op. 08-13: Taping Your Own Divorce Calls

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-92-17/

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 92-17

A client seeks an attorney's advice about surreptitiously tape recording a conversation between the client and his employer. The stated purpose of the recording is to preserve evidence that the employer is pressuring the client to engage in improper conduct in the course of his employment. The recordings would be used if the client were fired by his employer for refusing to engage in the improper conduct.

Questions:

1. Is it ethical for the attorney to advise the client to surreptitiously record the conversation with his employer?
2. Is it ethical for the attorney to recommend to the client a company capable of supplying recording equipment necessary to record the conversation?

Summary:

1. Depending upon one's reading of South Carolina case law, it may be unethical for an attorney to advise a client to surreptitiously record a conversation between the client and his employer.
2. Depending upon one's reading of South Carolina case law, it may be unethical for an attorney to recommend to a client a company capable of supplying recording equipment necessary to surreptitiously record a conversation.

Opinion:
Rule of Professional Conduct 8.4 (d) states that "(i)t is professional misconduct for a lawyer to . . . (e)ngage in conduct involving dishonesty, fraud, deceit or misrepresentation." The South Carolina Supreme Court has construed this language to preclude an attorney from recording any conversation or portion of a conversation without the prior knowledge and consent of all parties to the conversation, irrespective of the purpose for which the recording is made. In the Matter of An Anonymous Member of the South Carolina Bar, 404 S.E. 2d 513 (S.C. 1991). See also, In Re: Anonymous Member of the South Carolina Bar, 322 S.E. 2d 667 (S.C. 1984). The Court has also held that the language of Rule 8.4(d) precludes an attorney from engaging in a scheme to entrap and secretly record a Family Court Judge who is allegedly involved in judicial misconduct. In Re: Warner, 335 S.E. 2d 90 (S.C. 1985).

The Court's single exception to these rules applies when an attorney records a conversation made with the prior consent or at the request of an appropriate law enforcement agency in the course of a legitimate criminal investigation. In the Matter of:

Attorney General's Petition, S.C. Supreme Court Order dated 3/25/92 (Davis Adv. Sh. No 10 at p.1). These cases make it abundantly clear that, except when involved in an official criminal investigation, an attorney himself may never surreptitiously record a conversation with another person, regardless of the purpose of the recording. However, while a broad reading of Warner implies that it is also improper for an attorney to counsel or assist his client in surreptitiously recording a conversation which the attorney himself would be prohibited from recording, a narrow reading of Warner implies only that an attorney and his client cannot engage in a scheme to record a judge in chambers, for whom administrative procedures are available to redress misconduct. These rules would not appear to apply, however, when a client comes to an attorney asking simply whether it is legal to surreptitiously record a conversation. There seems to be a meaningful distinction between (1) advising a client that he can legally engage in secret recording, and (2) instructing or assisting a client to actually engage in secret recording. For example, it would not be impermissible for the attorney to render an opinion about whether the Omnibus Crime Control and Safe Street Acts of 1968, 18 U.S.C. s 2511, makes it legal for a person to secretly record a conversation. Such an opinion is essentially nothing more than interpretation of a statute. Any contrary conclusion would prevent lay persons from obtaining advice about the legality of contemplated future conduct. On the other hand, depending upon one's reading of Warner, it might be impermissible for an attorney to actually instruct a client to secretly record a conversation or provide him with the means for doing so.

In summary, while Warner can be read narrowly only to prohibit an attorney from assisting a client to secretly record conversations with a judge which would then be used to prove judicial misconduct, Warner can also be read broadly to prohibit an attorney from counseling or assisting anyone to secretly record any conversation with anyone. Until Warner is clarified, this area remains uncertain and the prudent course would seem to be to give Warner a broad reading.