Ezel / Ethics Opinions / TNBPR
TNBPR July 18, 1986

Could a Tennessee criminal defense lawyer secretly record a conversation with a witness or another party if one party to the conversation consented?

Short answer: Vacated. As originally issued, the opinion rescinded Formal Ethics Opinion 81-F-14 (which had adopted ABA Formal Opinion 337's rule that secret recording is dishonest conduct under DR 1-102(A)(4)) to the extent that rule had been read to let prosecutors use one-party-consent secret recordings in criminal investigations while ethically barring defense lawyers from the same tool. The opinion held there was no ethical impropriety in a lawyer secretly recording a potentially adverse witness in a criminal case for impeachment purposes, or recording an utterance that is itself a felony such as a bribe offer or attempted extortion, provided one party consented and no law was violated, but held secret recording in civil matters remained a violation of DR 1-102(A)(4). The Board vacated this opinion on September 11, 2015.

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This page answers the general question as of 1986. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 1986
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 Not binding precedent.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) is the authoritative source for any reliance.

Plain-English summary

The opinion reconsidered Formal Ethics Opinion 81-F-14, which had adopted ABA Formal Opinion 337's rule that secretly recording a conversation constitutes dishonesty, fraud, deceit, or misrepresentation under DR 1-102(A)(4). The opinion observed that 81-F-14 and ABA 337 had come to be construed to exempt prosecutors, letting them use one-party-consent secret recordings in criminal investigations, while the same interpretation effectively barred criminal defense lawyers from the identical investigative tool. The opinion reasoned that the use of evidence is geared toward eliciting the truth, that truth "takes no sides," and that the defense should have the same opportunity to pursue it, while also recognizing that secret recordings are a desirable tool in detecting and proving crime and that the legal tradition guarantees the fullest protection to a criminally accused.

On that reasoning, the opinion held there was no ethical impropriety in secretly recording a potentially adverse witness in a criminal case for the purpose of providing a means of impeachment at trial, provided one party to the communication consented and the recording violated no law. It further held any lawyer could record an utterance that is itself a felonious crime, including bribe offers and attempted extortion, on the same one-party-consent and legality conditions. The opinion preserved the rule for civil matters: secret recordings of lawyers, clients, witnesses, or other persons in civil matters remained a violation of DR 1-102(A)(4) and were prohibited. The opinion expressly rescinded Formal Ethics Opinion 81-F-14.

Currency note

Vacated. The Board of Professional Responsibility vacated Formal Ethics Opinion 86-F-14(a) on September 11, 2015, "due to changes in the laws or rules." This opinion was also issued in 1986, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. A vacated opinion has no continuing force and is not the Board's current guidance. It is reproduced and summarized here only as a historical research record. Do not rely on it as current; verify the current rules on recording conversations and on honesty under RPC 8.4 before acting.

Common questions

Q: Could a Tennessee criminal defense lawyer secretly record a witness who might testify against the lawyer's client?

A: As originally issued, yes, for impeachment purposes. The opinion found no ethical impropriety in secretly recording a potentially adverse witness in a criminal case, provided one party consented and the recording violated no law.

Q: Did the same rule apply to civil cases?

A: No. The opinion held that secretly recording lawyers, clients, witnesses, or other persons in civil matters remained a violation of DR 1-102(A)(4) and was prohibited.

Q: What earlier opinion did this one rescind?

A: Formal Ethics Opinion 81-F-14, which had adopted ABA Formal Opinion 337's rule treating secret recording as dishonest conduct, and which had come to be read as exempting only prosecutors from that rule.

Q: Is this opinion still in force?

A: No. The Board vacated Formal Ethics Opinion 86-F-14(a) on September 11, 2015. It is preserved here only as a historical research record.

Background and rules framework

The opinion applied former DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and rescinded the Board's prior application of that rule to secret recording in Formal Ethics Opinion 81-F-14, which had adopted ABA Formal Opinion 337. The modern analog is Model Rule 8.4(c) / Tennessee RPC 8.4(c) (the same prohibition on dishonesty, fraud, deceit, or misrepresentation).

Citations and references

Rules of Professional Conduct (former Code):

  • DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation). Modern analog: Model Rule 8.4(c) / Tennessee RPC 8.4(c)

Other opinions cited:

  • Tennessee Formal Ethics Opinion 81-F-14 (adopting ABA Formal Opinion 337's rule against secret recording; expressly rescinded by this opinion)
  • ABA Formal Opinion 337

See also

Source

Original opinion text

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

86-F-14(a) - Vacated*

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the laws or rules.

FORMAL ETHICS OPINION 86-F-14(a)

Request has been made for reconsideration and clarification of Formal Ethics Opinion 81-F-14 concerning recording of conversations by criminal defense attorneys without the knowledge of all parties to the conversation.

Formal Ethics Opinion 81-F-14 adopted ABA Formal Opinion 337 ruling that secret recording of conversations by an attorney constitutes conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Disciplinary Rule 1-102(A) of the Code of Professional Responsibility.

Ethics Opinion 81-F-14 and ABA 337 have been construed to exempt prosecutors and to allow them to utilize secret recordings in conducting criminal investigations where one party to the conversation has consented. The practical effect of this interpretation of the ethics opinions is the imposition of an ethical prohibition on the use of secret recordings by defense

lawyers in criminal cases, thus depriving them of an investigative tool available to the prosecution.

The use of evidence is geared toward eliciting the truth. Truth is absolute and takes no sides. The defense should be given the same opportunity to assume its attainment.

We recognize that secret recordings are a desirable tool in detecting and providing crime; and, that our legal tradition guarantees the fullest protection to a criminally accused.

There is no ethical impropriety in secretly recording potentially adverse witnesses in criminal cases for the purpose of providing a means of impeachment in a criminal trial, provided one party to the communication has consented and provided such recording does not violate any law.

Further, any lawyer may record an utterance which is itself a felonious crime, including bribe offers and attempted extortions, provided one party to the communication has consented and provided such recording does not violate any law.

Secret recordings of lawyers, clients, witnesses, or other persons in civil matters is in violation of DR 1-102(A)(4) of the Code and prohibited.

FORMAL ETHICS OPINION 81-F-14 is hereby expressly rescinded.

This 18th day of July, 1986.

William R. Willis, Chmn

W. J. Flippin

Cecil D. Branstetter

G.Wilson Horde,V-Chm.

Henry H.Hancock

Michael E. Callaway

Jerry C. Colley

Charles T. Herndon

Edwin C. Townsend

APPROVED AND ADOPTED BY THE BOARD

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