Can a Texas lawyer secretly record a phone call with a client or a third party without telling them the call is being recorded?

Plain-English summary

A lawyer electronically records telephone conversations with clients and third parties without telling them. The Committee reviews its own shifting history on the question: Opinion 84 (1953) allowed undisclosed recording; Opinion 392 (1978) overruled it, calling the practice one that "offends the sense of honor and fair play of most people"; and Opinion 514 (1996) reaffirmed that bar under Rule 8.04(a)(3). The Committee also notes the ABA's Formal Opinion 01-422 (2001), which withdrew the contrary ABA Formal Opinion 337 (1974) and allowed undisclosed recording where lawful and not contrary to a representation, while calling recording one's own client generally inadvisable.

Reconsidering the issue, the Committee changes course. It recognizes legitimate reasons to record (aiding memory and an accurate record, gathering information from potential witnesses, protecting the lawyer from false accusations). No rule specifically bars a lawyer's unannounced recording of a call the lawyer participates in, and Texas and federal law generally permit a participant to record (Texas Penal Code Section 16.02 et seq.; 18 U.S.C. Section 2511). Because Texans generally may record their own calls and many businesses routinely record, the Committee concludes such recording by a party is not "dishonesty, fraud, deceit or misrepresentation" under Rule 8.04(a)(3), and no other rule is violated absent something more.

The Committee attaches four qualifications. A recording involving a client should be made only for a legitimate purpose serving the client's or lawyer's interests (in light of Rules 1.05 and 1.06); the lawyer must take steps under Rule 1.05 to safeguard any confidential information in the recording; the lawyer must not record where doing so would be a serious criminal offense under any applicable law (for instance another state's), given Rule 8.04(a)(2); and, even with client involvement or consent, the lawyer may not record contrary to a representation the lawyer made to any person (Rule 8.04(a)(3)).

In practice

Under this opinion, and under the Texas rules as they stood at the time, a Texas lawyer may make an undisclosed recording of a call the lawyer is on without it being treated, by itself, as a Rule 8.04(a)(3) violation. The Committee conditions that conclusion: recordings touching a client must serve a legitimate purpose and protect confidential information under Rule 1.05; the lawyer must avoid recording where it would be a serious crime in any applicable jurisdiction; and the lawyer may not record in a way that contradicts a representation the lawyer made. The opinion expressly overrules the contrary Opinions 392 and 514.

Common questions

Q: Can I record a phone call with a client or witness without telling them?

A: Per Opinion 575, generally yes, if you are a party to the call. The Committee concluded that an undisclosed recording by a participant is not, by itself, "dishonesty, fraud, deceit or misrepresentation" under Rule 8.04(a)(3), subject to four conditions.

Q: Does this opinion change earlier Texas guidance?

A: Yes. The Committee expressly overruled Opinions 392 (1978) and 514 (1996), which had barred a lawyer's undisclosed recording of telephone conversations.

Q: What limits apply if I record a client call?

A: The Committee says the recording must serve a legitimate purpose, you must safeguard confidential information under Rule 1.05, you must not record where it would be a serious crime under any applicable law, and you may not record contrary to a representation you have made to anyone.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 8.04(a)(3) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and 8.04(a)(2) (commission of a serious crime), corresponding to ABA Model Rule 8.4(c) and 8.4(b); and Rules 1.05 (confidentiality) and 1.06 (conflicts of interest), corresponding to ABA Model Rules 1.6 and 1.7. It applies the participant-recording provisions of the Texas Penal Code and the federal wiretap statute.

Citations and references

Rules of Professional Conduct:

• MR 8.4(c) (dishonesty, fraud, deceit, or misrepresentation)
• MR 8.4(b) (criminal acts reflecting on fitness)
• MR 1.6 (confidentiality of information)
• Texas Disciplinary Rule 8.04(a)(2), 8.04(a)(3)
• Texas Disciplinary Rule 1.05; Rule 1.06

Statutes:

• Tex. Penal Code Section 16.02 et seq. (interception of communications)
• 18 U.S.C. Section 2511 (federal wiretap statute)

Other opinions cited:

• ABA Formal Opinion 01-422 (June 24, 2001): undisclosed recording permitted where lawful and not contrary to a representation; withdrew ABA Formal Opinion 337 (1974)
• Texas Professional Ethics Committee Opinion 84 (1953), Opinion 392 (1978), and Opinion 514 (1996): prior Texas treatment; 392 and 514 overruled by this opinion

See also

• TX Ethics Op. 572: Giving Privileged Materials to a Copy Service or Other Contractor
• TX Ethics Op. 589: Reporting an Adverse Party's or Witness's Possible Crime

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-575/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_575.pdf

Original opinion text

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

QUESTION PRESENTED

May a lawyer electronically record a telephone conversation between the lawyer and a client or third party without first informing the other party to the call that the conversation is being recorded?

STATEMENT OF FACTS

A lawyer electronically records telephone conversations with clients and third parties without the other party or parties to the conversation being made aware that the conversations are being recorded.

DISCUSSION

This Committee has considered the question of a lawyer’s undisclosed recording of telephone conversations three times. In 1953, in Professional Ethics Committee Opinion 84 (November 1953) the Committee ruled that the undisclosed recording by a lawyer of his telephone conversations was not a violation of the Canons of Ethics. The question was considered again in Opinion 392 (February 1978), in which the Committee overruled Opinion 84 and ruled, under the then applicable Texas Code of Professional Responsibility, that a lawyer’s undisclosed recording of his telephone conversations “offends the sense of honor and fair play of most people” and was generally not permitted under the disciplinary rules then applicable to Texas lawyers. When the question was again considered in Opinion 514 (February 1996), the Committee reaffirmed the conclusion of Opinion 392, citing Rule 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct.

In the years since this Committee last considered the issue here presented, the issue has been the subject of rulings by a number of ethics committees, most notably by the American Bar Association Standing Committee on Ethics and Professional Responsibility (the “ABA Committee”) in Formal Opinion 01-422 (June 24, 2001). In that opinion, the ABA Committee withdrew Formal Opinion 337 (1974), which had held that a lawyer was not permitted to make undisclosed recordings of telephone conversations, and instead ruled that a lawyer may record his telephone conversations without disclosure to other parties to the calls provided that the recording is not in violation of applicable law and is not contrary to a representation by the lawyer that the conversation is not being recorded. The ABA Committee indicated that it was divided as to whether a lawyer was permitted to make an undisclosed recording of a telephone conversation with a client but indicated the Committee’s view that such recordings were generally inadvisable.

It is recognized that there are legitimate reasons a lawyer would electronically record conversations with a client or third party. Among the legitimate reasons are to aid memory and keep an accurate record, to gather information from potential witnesses, and to protect the lawyer from false accusations.

No provision of the Texas Disciplinary Rules of Professional Conduct specifically prohibits a lawyer’s unannounced recording of telephone conversations in which the lawyer participates. Moreover, applicable law does not generally prohibit such recordings in Texas by a participant to a telephone conversation, whether or not the participant recording the conversation is a lawyer. See section 16.02 et seq. of the Texas Penal Code and section 2511 of title 18 of the United States Code.

After reconsidering the issue, this Committee is of the opinion that the Texas Disciplinary Rules of Professional Conduct do not generally prohibit a lawyer from making undisclosed recordings of telephone conversations in which the lawyer is a party, provided that certain requirements are complied with as discussed below.

Rule 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct provides:
“(a) A lawyer shall not:
...
(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
. . . .”
In view of the fact that persons in Texas are generally not prohibited from making undisclosed recordings of their telephone conversations and that many businesses routinely record telephone conversations on business premises with or without notice, the Committee does not believe that an undisclosed recording of a telephone conversation by a party to the conversation can be termed to involve “dishonesty, fraud, deceit or misrepresentation” within the meaning of Rule 8.04(a)(3). Hence, absent more, a Texas lawyer’s undisclosed recording of his telephone conversation with another person should not be held to violate Rule 8.04(a)(3). Since, as already noted, an undisclosed recording of a telephone conversation by a party to the conversation is not a crime under Texas or Federal law, there appears to be no other provision of the Texas Disciplinary Rules of Professional Conduct that could be said to be violated by such an undisclosed recording. Accordingly, subject to the qualifications discussed in the next paragraph, the undisclosed recording of telephone conversations by a Texas lawyer should not be treated as a violation of the Texas Disciplinary Rules of Professional Conduct.

The Committee notes several qualifications to the conclusion reached above. First, in view of the rights of a client to the lawyer’s protection of confidential client information as provided in Rule 1.05 and the client’s rights against a lawyer’s involvement in an impermissible conflict of interest contrary to Rule 1.06, a lawyer should make an undisclosed recording of telephone conversations involving a client only if there is a legitimate reason to make the recording in terms of protection of the legitimate interests of the client or of the lawyer. Second, a lawyer should not make a recording of a telephone conversation with a client unless the lawyer can and does take appropriate steps consistent with the requirements of Rule 1.05 to safeguard confidential information that may be included in the recording of the telephone conversation. Third, in view of the requirement of Rule 8.04(a)(2) that a lawyer not be involved in the commission of a serious crime, a lawyer should not make an undisclosed recording of a telephone conversation if the telephone conversation proposed to be recorded by a lawyer is subject to other laws (for instance the laws of another state) that make such a recording a serious criminal offense. Finally, regardless of whether the client is involved in the telephone conversation or has consented to the recording, the lawyer may not under Rule 8.04(a)(3) make a recording of a telephone conversation if the making of such a recording would be contrary to a representation made by the lawyer to any person.

CONCLUSION

The Texas Disciplinary Rules of Professional Conduct do not prohibit a Texas lawyer from making an undisclosed recording of the lawyer’s telephone conversations provided that (1) recordings of conversations involving a client are made to further a legitimate purpose of the lawyer or the client, (2) confidential client information contained in any recording is appropriately protected by the lawyer in accordance with Rule 1.05, (3) the undisclosed recording does not constitute a serious criminal violation under the laws of any jurisdiction applicable to the telephone conversation recorded, and (4) the recording is not contrary to a representation made by the lawyer to any person. Opinions 392 and 514 are overruled.

Tex. Comm. On Professional Ethics, Op. 575 (2006)