Can I secretly record a phone call I'm on without telling the other party, and can I advise a client to record a call they're on?

Plain-English summary

The Committee addressed two questions: whether a lawyer may secretly record a telephone conversation the lawyer is a party to without informing the others, and whether a lawyer may advise a client to record a conversation the client is a party to without informing the others. It treated the first as governed by DR 8.04(a)(3) (misconduct involving dishonesty, fraud, deceit, or misrepresentation).

On the lawyer's own recording, the Committee reaffirmed Opinion 392 (1978): although a party's recording of a conversation does not per se violate the law, attorneys are held to a higher standard, and secret recording offends most persons' sense of honor and fair play. Because the rules underlying Opinion 392 carried forward into DR 8.04(a)(3) (formerly DR 1-102(A)(4)), the Committee saw no reason to change the prior view: attorneys may not electronically record a conversation with another party without first informing that party. It noted the narrow exception recognized in 1978 for the attorney general, prosecutors, or law enforcement acting under strict statutory limits, to be assessed case by case.

On advising a client, the Committee concluded that because both Texas and federal law permit a party to record a conversation without informing the others, and because a lawyer must give the client an accurate statement of the law and an honest opinion of likely consequences (Comment 7 to DR 1.02), a lawyer may advise the client that the law permits such recording where the equities of the situation merit that advice. The Committee drew the line at circumvention: a lawyer may not evade his own ethical obligation by having clients secretly record conversations to which the lawyer is a party; in that situation the lawyer must advise the other parties of the recording in advance, because a lawyer may not use others to do what the lawyer is ethically prohibited from doing (DR 8.04(a)(1)).

Currency note

This opinion was issued in 1996, under the Texas Disciplinary Rules of Professional Conduct that took effect January 1, 1990. Texas did not adopt the ABA's Ethics 2000 revisions; its rules have been amended only piecemeal since (including the March 1, 2005 amendment to the fee rule, Rule 1.04, and the comprehensive 2021 revisions adopted by Texas Supreme Court order). The Committee later revisited the undisclosed-recording question in Opinion 575 (linked below); 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 Texas lawyer secretly record a call the lawyer is on?

A: Under this opinion, no. Reaffirming Opinion 392, the Committee concluded that under DR 8.04(a)(3) a lawyer may not electronically record a conversation with another party without first informing that party.

Q: Can a lawyer advise a client to record a call the client is on?

A: The Committee concluded a lawyer may advise the client that both Texas and federal law permit a party to record a conversation without informing the others, where the equities merit that advice, because the lawyer must give an accurate statement of the law (Comment 7 to DR 1.02).

Q: Can a lawyer have a client secretly record a call the lawyer is part of?

A: The opinion concluded no. A lawyer may not circumvent the ethical bar by using a client to secretly record a conversation the lawyer is part of; the lawyer would have to advise the other parties in advance, because under DR 8.04(a)(1) a lawyer may not act through others to violate the rules.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 8.04(a)(3) (misconduct involving dishonesty, fraud, deceit, or misrepresentation; ABA Model Rule 8.4), the successor to former DR 1-102(A)(4), together with Rule 8.04(a)(1) (violating the rules through the acts of another). On advising the client, it relies on Comment 7 to Rule 1.02 (scope and objectives of representation; Model Rule 1.2), which calls for an accurate statement of the law and an honest assessment of consequences.

Citations and references

Rules of Professional Conduct:

• MR 8.4 (misconduct)
• MR 1.2 (scope of representation; advising the client)
• Texas Disciplinary Rules 8.04(a)(3), 8.04(a)(1), and Comment 7 to Rule 1.02

Statutes:

• 18 U.S.C. Section 2511(2)(d); Tex. Penal Code Ann. (party may record)

Other opinions cited:

• Tex. Ethics Op. 392 (July 1978): attorneys held to a higher standard; no secret recording without informing the other party

See also

• TX Ethics Op. 575: Undisclosed Recording of Telephone Conversations
• TX Ethics Op. 522: Firm Disclosure Duties After a Partner's False Credentials

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-514/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_514.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative. The source text encoded curly quotation marks, apostrophes, and a section symbol with unreadable characters; these have been restored.

QUESTION PRESENTED

May a lawyer, in the course of his or her practice of law, ethically electronically record a telephone conversation to which the lawyer is a party, without first informing all other parties to the conversation?
May a lawyer ethically advise a client to tape record a telephone conversation to which the client is a party without first informing all other parties to the conversation?

DISCUSSION

The above questions are governed by Texas Disciplinary Rules 8.04(a)(3), Misconduct.

In February 1978, this committee addressed the issue of whether an attorney, in the course of his or her practice of law, could electronically record a telephone conversation without first informing all of the parties involved. (See Ethics Opinion 392, Tex. B.J., July 1978, page 580.) The committee concluded that, although the recording of a telephone conversation by a party thereto did not per se violate the law, attorneys were held to a higher standard. The committee reasoned that the secret recording of conversations offended most persons' concept of honor and fair play. Therefore, attorneys should not electronically record a conversation with another party, without first informing that party that the conversation was being recorded.

The only exceptions considered at that time were ". . . extraordinary circumstances in which the state attorney general or local government or law enforcement attorneys or officers acting under the direction of the attorney general or such principal prosecuting attorneys might ethically make and use secret recordings if acting within strict statutory limitations conforming to constitutional requirements," which exceptions were to be considered on a case-by-case basis.

The disciplinary rules upon which Opinion 392 is based have been incorporated into the new Texas Disciplinary Rules of Professional Conduct. See DR 8.04(a)(3), Misconduct (formerly DR 1-102(A)(4)). Therefore, this committee sees no reason to change its former opinion. Pursuant to DR 8.04(a)(3), attorneys may not electronically record a conversation with another party without first informing that party that the conversation is being recorded.

This brings the committee to the issue of whether an attorney can ethically advise a client to electronically record a telephone conversation to which the client is a party, without first informing all other parties involved. Both Texas and federal law permit a party to a conversation to tape record that conversation without first informing the other parties that the conversation is being recorded. (See 18 U.S.C. Section 2511 (2)(d); Tex. Penal Code Ann. (Vernon 1986).) An attorney is required to provide his or her client with both an accurate statement of the law, and an honest opinion of the consequences likely to result from a particular course of conduct. (See Comment 7 to DR 1.02.) Hence, an attorney may advise his or her client that both Texas and federal law permit the client to electronically record conversations without first informing the other parties involved, where the equities of the situation merit such advice.

An attorney, however, may not circumvent his or her ethical obligations by requesting that clients secretly record conversations to which the attorney is a party. Under these circumstances, the attorney would be ethically required to advise the other parties of the electronic recording, in advance. An attorney may not solicit the aid of his or her clients to undertake an action that the attorney is ethically prohibited from undertaking. (See DR 8.04(a)(1)(discussing violations of the disciplinary rules through the acts of others).)

Tex. Comm. On Professional Ethics, Op. 514 (1996)