Can a lawyer record a telephone conversation without telling the other person it is being recorded?

Plain-English summary

The inquiry asked whether it would violate the Canons for a lawyer to record a telephone conversation without advising the person on the other end that a record was being made.

The Committee unanimously concluded that the described conduct would not violate the Canons of Ethics (10-0). The opinion's headnote files the question under "Wiretapping - Recording Telephone Conversations."

Currency note

This opinion was issued in 1953, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The ethics of undisclosed recording have been revisited by later authorities, and conduct involving dishonesty or deceit is now addressed under Texas Disciplinary Rule 8.04 and ABA Model Rule 8.4. 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 Treat this page as historical context, not current guidance.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: Did this opinion permit a lawyer to secretly record a phone call?

A: It concluded that doing so would not violate the Canons as they stood in 1953 (10-0), but it is a historical opinion and later authorities have revisited the question.

Q: Did the opinion cite a specific Canon?

A: No. The Committee stated only that the conduct would not violate the Canons of Ethics, without identifying a particular Canon.

Background and rules framework

The opinion addressed undisclosed recording of telephone conversations under the former Texas Canons, without identifying a specific Canon. The conduct is today analyzed under the rule against dishonesty, fraud, deceit, or misrepresentation, ABA Model Rule 8.4 and Texas Disciplinary Rule 8.04.

Citations and references

Rules of Professional Conduct:

• MR 8.4 (misconduct, including dishonesty and deceit), as the modern reference point

See also

• TX Ethics Op. 105: Wiretap Information and Client Confidences
• TX Ethics Op. 117: Obtaining a Statement From an Opposing Party

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-84/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_84.pdf

Original opinion text

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

QUESTION PRESENTED

Would it be a violation of the Canons of Ethics for a lawyer to record a telephone conversation without advising the person conversing with him that a record is being made?

18 Baylor L. Rev. (1966)

WIRETAPPING - RECORDING TELEPHONE CONVERSATIONS
An attorney may record a telephone conversation without advising the person conversing with him that a record is being made.

The members of the committee are unanimously of the opinion that the above described conduct would not be a violation of the Canons of Ethics. (10-0)

Tex. Comm. On Professional Ethics, Op. 84 (1953)