Can a lawyer advise a client to secretly record a conversation with an unrepresented person to capture an admission?

Plain-English summary

An attorney represented A in a potential civil suit against her father, B, for damages from his alleged childhood sexual abuse of her, conduct that would be a felony if proven. There was little corroborating evidence, but B, who was not represented by counsel, had continued to have contact with A and had freely admitted the abuse in some conversations. The attorney suggested that A arrange a meeting with B and surreptitiously record their conversation to obtain an admission. The committee was asked whether it would violate the Code for the attorney to advise the client to record a conversation with an unrepresented party without that party's consent or knowledge, to obtain an admission.

The controlling rules were DR 1-102(A)(2) and (4) (circumventing a rule through another and dishonest, deceitful, or misrepresenting conduct), DR 7-102(A)(8), and DR 7-103(B).

The committee concluded that whether non-consensual recording to which the client is a party is legal in Virginia is a question of law beyond its purview, but that even if such recording is not prohibited by law, a lawyer's engaging in or assisting it may be improper, because a lawyer may not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation reflecting adversely on fitness. On these facts, it concluded that advising the client to initiate a conversation under possibly false pretenses and secretly record it was improper, deceptive conduct that may reflect on the lawyer's fitness, and that the attorney may have been attempting to do indirectly, through the client, what he could not ethically do directly, namely contact the potential defendant under the appearance of disinterestedness and secretly record the conversation, circumventing the Disciplinary Rules (citing LE Op. 233, 848, 1170, 1217, 1324, and Gunter v. Virginia State Bar).

Currency note

This opinion was issued in 1992, under Virginia's former Code of Professional Responsibility (the disciplinary rules it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the opinion's committee note observes, in LEO 1738 the committee later recognized narrow exceptions to this prohibition for criminal investigations and housing-discrimination "tests," so the broad prohibition stated here has since been qualified. 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 lawyer tell a client to secretly record someone to get an admission?

A: Under this 1992 opinion, advising a client to initiate a conversation under possibly false pretenses and secretly record it was improper, deceptive conduct that may reflect on the lawyer's fitness, even though the legality of the recording itself was a question of law the committee would not decide.

Q: Does it matter that the lawyer used the client instead of recording personally?

A: The committee said it did not help. It viewed the advice as a possible attempt to do indirectly through the client what the lawyer could not ethically do directly, circumventing the Disciplinary Rules.

Q: Is this prohibition still absolute?

A: No. The opinion's committee note states that LEO 1738 later recognized narrow exceptions for criminal investigations and housing-discrimination "tests."

Background and rules framework

The opinion interpreted former Virginia DR 1-102(A)(2) and (4), DR 7-102(A)(8), and DR 7-103(B), treating advice to secretly record as deceptive conduct and as circumvention of the rules through another. The general prohibition on dishonesty is now in Virginia Rule 8.4, dealings with unrepresented persons in Rule 4.3, and truthfulness to others in Rule 4.1; LEO 1738 supplies the current, narrower treatment of recording.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 1-102(A)(2), (4); DR 7-102(A)(8); DR 7-103(B) (Code of Professional Responsibility)
• ABA Model Rule 8.4 (misconduct); Model Rule 4.3 (unrepresented persons); Model Rule 4.1 (truthfulness to others)

Cases:

• Gunter v. Virginia State Bar, 238 Va. 617 (1989).

Other opinions cited:

• Virginia LE Op. 233, 848, 1170, 1217, 1324: secret recording and circumvention of the rules.
• Virginia LEO 1738: later narrow exceptions for criminal investigations and discrimination testing.

See also

• VA LEO 1635: Surreptitious Tape Recording
• VA LEO 1738: One-Party-Consent Recording and Investigations
• VA LEO 1814: Undisclosed Recording of Third Parties

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1448.pdf

Original opinion text

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

Committee Opinion
January 6, 1992
LEGAL ETHICS OPINION 1448

MISCONDUCT - REPRESENTING A
CLIENT WITHIN THE BOUNDS OF THE
LAW: ADVISING CLIENT/POTENTIAL
CIVIL PLAINTIFF TO RECORD ORAL
CONVERSATION WITH
UNREPRESENTED POTENTIAL CIVIL
DEFENDANT.

An attorney represents A, who allegedly was sexually abused by father, B, for an extended period during her childhood. B's sexual abuse of A, if proven, would constitute a criminal felony act. A repressed the memories of the abuse and did not recall the extent and nature of the abuse until she received therapy as an adult. As a result of the abuse, A suffers from several significant psychiatric disorders and has required extensive therapy, including several periods of hospitalization. Attorney represents A as to a potential civil suit against B for damages related to his alleged sexual abuse of A. There is little corroborating evidence and Attorney has suggested that A arrange a meeting with B, who is not currently represented by counsel, and surreptitiously record their conversation, since B has continued to have contact with A, and in some conversations, has freely admitted his sexual abuse of A. The Committee was asked to opine whether, under the facts of the inquiry, it would be violative of the Code of Professional Responsibility for an attorney to advise a client to record a conversation between the client and another party, without the consent or prior knowledge of that party, for the purpose of obtaining an admission of the party's sexual abuse of the client, when the party is not represented by counsel. Whether or not the surreptitious recordation of conversations by a lawyer, or by his authorization, to which the lawyer's client is a party, is legal in Virginia is a question of law and, as such, is beyond the purview of the Committee. The Committee has previously opined, however, that even if non-consensual tape recordings are not prohibited by Virginia or federal law, a lawyer's engaging in such conduct, or assisting a client in such conduct may be improper since a lawyer is prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflects adversely on the lawyer's fitness to practice law. Under the facts presented, the Committee opines that advising one's client to initiate a conversation under possibly false pretenses and to secretly record such conversation is improper, deceptive conduct which may reflect on the lawyer's fitness to practice law. The Committee also opined that the attorney may be attempting to do indirectly, through the client, what the attorney could not ethically accomplish directly and personally, i.e., contact the potential defendant directly under the appearance of disinterestedness and surreptitiously record the conversation, thus attempting to circumvent the applicable Disciplinary Rules. [ DR:1-102(A)(2) and (4), DR:7102(A)(8), DR:7-103(B); LE Op. 233, LE Op. 848, LE Op. 1170, LE Op. 1217, LE Op. 1324; Gunter v. Virginia State Bar, 238 Va. 617 (1989).]

Committee Opinion
January 6, 1992

Legal Ethics Committee Notes. – If information about the ethics violation is a client confidence, a lawyer may report the other lawyer’s misconduct only if the client consents under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the client under that Rule. In LEO 1738, the committee recognized narrow exceptions to this prohibition in the case of criminal investigations and housing discrimination “tests.” In addition, if information about the ethics violation is a client confidence, a lawyer may report the other lawyer’s misconduct only if the client consents under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the client under that Rule.