Is a lawyer's secret, non-consensual tape recording of a phone call improper even if legal, and must opposing counsel report it while a civil suit is pending?

Plain-English summary

Attorney A represented Mr. Doe in a dispute over his employment termination. Before Attorney A was involved, Attorney B, the son of the corporation's owners and an officer of the corporation, telephoned Mr. Doe to tell him of his termination. Attorney B did not say he was acting as the corporation's attorney, though Mr. Doe knew he was a lawyer. Without notice or consent, Attorney B tape recorded the call, later told Attorney A he had done so, and the corporation produced a transcript of the recording in response to a document request in the wrongful-discharge suit. The committee was asked several questions about the recording.

The controlling rules were DR 1-102(A)(4) (no dishonesty, fraud, deceit, or misrepresentation), DR 1-103(A) (duty to report misconduct raising a substantial question as to honesty, trustworthiness, or fitness), and DR 7-104 (no presenting or threatening criminal or disciplinary charges solely for civil advantage). On the recording itself, the committee relied on LE Op. 1324 and Gunter v. Virginia State Bar, 238 Va. 617 (1989), for the view that even if non-consensual recording is not illegal, a lawyer's engaging in it is improper and violates DR 1-102(A)(4); because that rule is not limited to attorney-client activity, the outcome would be no different if Attorney B acted only as a corporate officer or agent rather than as counsel.

On reporting, the committee said Attorney A must determine whether the misconduct raises a substantial question as to honesty, trustworthiness, or fitness, weighing factors such as the recency and seriousness of the conduct, the likelihood of repetition, the effect on competence, and any mitigating or aggravating circumstances (citing LE Op. 1308, 1522, 1528, and In re Himmel). It observed that surreptitious recording of an adverse party's call may raise such a substantial question. On the tension between reporting and DR 7-104, the committee pointed to LE Op. 1338 and 1545: once both prongs of DR 1-103(A) are met the lawyer must report without unnecessary delay, while remaining vigilant about the DR 7-104 bar on threatening disciplinary charges solely for civil advantage.

Currency note

This opinion was issued in 1995, under Virginia's former Code of Professional Responsibility (the disciplinary rules and ethical considerations it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. Its analysis of surreptitious recording was later limited: as the opinion's own editor's note records, in LEO 1738 the committee indicated that lawyers or their agents may secretly record conversations in which they participate, at least in situations involving criminal or housing-discrimination investigations or self-protection from possible criminal action. 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: Was a lawyer's secret recording of a phone call improper even if it was legal?

A: Under this 1995 opinion, yes. Relying on LE Op. 1324 and Gunter, the committee concluded that a lawyer's non-consensual recording was improper under DR 1-102(A)(4) even if not unlawful. That recording analysis was later limited by LEO 1738.

Q: Did it matter that the recording lawyer was acting as a company officer, not as the company's attorney?

A: No. The committee held DR 1-102(A)(4) is not limited to attorney-client activity, so the outcome would not differ if the lawyer acted only as a corporate officer or agent.

Q: Did the opposing lawyer have to report the secret recording?

A: The committee said that is a fact-specific judgment turning on whether the conduct raises a substantial question as to honesty, trustworthiness, or fitness; once both prongs of the reporting rule are met, the lawyer must report without unnecessary delay while observing the bar against threatening charges for civil advantage.

Background and rules framework

The opinion interpreted former Virginia DR 1-102(A)(4) (dishonesty, fraud, deceit, misrepresentation), DR 1-103(A) (duty to report misconduct), and DR 7-104 (no threatening or presenting disciplinary charges solely for civil advantage). Those provisions now correspond to Virginia Rule 8.4(c) (dishonesty), Rule 8.3 (reporting misconduct), and Rule 3.4. The recording question, addressed here through Gunter and LE Op. 1324, was revisited in LEO 1738.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 1-102(A)(4); DR 1-103(A); DR 7-104 (Code of Professional Responsibility)
• ABA Model Rule 8.4(c) (dishonesty); Model Rule 8.3 (reporting misconduct); Model Rule 3.4

Cases:

• Gunter v. Virginia State Bar, 238 Va. 617 (1989), surreptitious recording as an "underhand practice" that can be unethical even if lawful.
• In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790 (1988), discipline for failing to report another lawyer's misconduct.

Other opinions cited:

• Virginia LE Op. 1324: a lawyer's non-consensual recording is improper under DR 1-102(A)(4).
• Virginia LE Op. 1308, 1522, 1528: factors bearing on whether misconduct must be reported.
• Virginia LE Op. 1338, 1545: report without unnecessary delay once both reporting prongs are met, while observing DR 7-104.

See also

• VA LEO 1738: One-Party-Consent Recording
• VA LEO 1802: Advising Clients to Record Lawfully
• VA LEO 1646: Reporting Misconduct in a Civil Case

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1635.pdf

Original opinion text

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

Committee Opinion
February 7, 1995
LEGAL ETHICS OPINION 1635

DUTY TO REPORT MISCONDUCT;
FRAUD; ATTORNEY'S TAPE
RECORDING TELEPHONE
CONVERSATION WHEN NOT ACTING
IN ATTORNEY CAPACITY;
THREATENING DISCIPLINARY
ACTION AGAINST OPPOSING
ATTORNEY IN CIVIL MATTER.

You have presented a hypothetical situation in which Attorney A represents an individual, Mr. Doe, who was involved in a dispute over the termination of his employment with a corporation. Prior to Attorney A's involvement in the case, Attorney B, the son of the owners of the corporation and an officer of the corporation, telephoned Mr. Doe to inform him of the termination of his employment and the reasons therefore. While Attorney B did not indicate in the telephone conversation that he was acting as attorney for the corporation, Mr. Doe was aware that Attorney B was an attorney. You indicate that, without notifying Mr. Doe and without obtaining his consent, Attorney B tape recorded the telephone conversation. In a subsequent telephone conversation with Attorney A, Attorney B informed Attorney A that he had tape recorded the earlier conversation with Mr. Doe. In response to Mr. Doe's Request for Production of Documents filed in the lawsuit against the corporation for wrongful discharge, the corporation produced the transcript of the taped conversation. Under the facts you have presented, you have asked the committee to opine as to several issues related to the tape recording of the telephone conversations. The appropriate and controlling disciplinary rules relative to your inquiry are DR:1102(A)(4) which prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; DR:1-103(A) which mandates that a lawyer having information indicating that another lawyer has committed misconduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness to practice law in other respects, shall report such information to the appropriate professional authority; and DR:7-104 which prohibits a lawyer from presenting, participating in presenting, or threatening to present criminal or disciplinary charges solely to obtain an advantage in a civil matter. The committee has previously opined that even if non-consensual tape recording of telephone conversations is not prohibited by Virginia or federal law, a lawyer's engaging in such conduct . . . would be improper and violative of DR:1-102(A)(4). LE Op. 1324 citing Gunter v. Virginia State Bar, 238 Va. 617 (1989) [“conduct may be unethical, measured by the minimum requirements of the Code of Professional Responsibility, even if it is not unlawful . . . . The surreptitious recordation of conversations authorized by Mr. Gunter . . . was an ‘underhand practice’ designed to ‘ensnare’ an opponent”. Therefore, in the facts you present, the committee believes that LE Op. 1324 is dispositive of the question as to whether Attorney B's conduct in engaging in the non-

Committee Opinion
February 7, 1995
consensual tape recording was improper and violative of DR:1-102(A)(4). Since the disciplinary rule in issue is not specifically applicable to activities undertaken in an attorney-client relationship, the committee is of the opinion that the outcome would not be different if Attorney B were acting only as an officer of the corporation or as agent for the owners of the corporation and not as the corporation's attorney. As to whether Attorney B's misconduct raises a substantial question as to his honesty, trustworthiness, or fitness to practice law in other respects, thereby imposing a duty on Attorney A to report the misconduct pursuant to DR:1-103(A), the committee is of the view that Attorney A must make such a determination after appropriate consideration of the facts and analysis of the impact of the misconduct on the delineated areas. Relevant factors to be considered include, but are not limited to: the recency of the conduct, the seriousness of the conduct, the likelihood that the behavior will be repeated, the likelihood that it will affect the attorney's competence, and any mitigating or aggravating circumstances. See LE Op. 1308, LE Op. 1522, LE Op. 1528; In re Himmel, 125 Ill.2d 531, 533 N.E.2d 790 (1988). The committee is of the opinion that, given that Attorney B knew that Mr. Doe's interests were adverse to those of the corporation, Attorney B's having surreptitiously tape recorded a telephone conversation without Mr. Doe's consent may raise a substantial question as to Attorney B's honesty, trustworthiness, or fitness to practice law in other respects. Finally, as to any conflict between Attorney A's reporting of Attorney B's misconduct pursuant to DR:1-103(A) and the prohibitions of DR:7-104 against presenting or threatening to present disciplinary charges solely to obtain an advantage in a civil matter, the committee directs your attention to LE Op. 1338 and LE Op. 1545, which the committee believes are applicable to the circumstances you present. In those prior opinions, the committee concluded that, once an attorney concludes that both prongs of DR:1-103(A) have been met, i.e. that misconduct has occurred which raises a substantial question as to the lawyer's honesty, trustworthiness, or fitness to practice law, “the attorney is obligated to report such misconduct without any unnecessary delay”. LE Op. 1545. However, the committee reiterates its caution that, in reporting such misconduct, the lawyer must be “vigilant in observing the DR:7-104 prohibition against presenting or threatening to present disciplinary charges solely to obtain an advantage in a civil matter”. Id. [emphasis added] Committee Opinion February 7, 1995 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 Editor’s Note. – In LEO 1738, the committee indicated that lawyers or their agents may secretly tape record telephone conversations in which they participate, but only in

Committee Opinion
February 7, 1995
situations involving criminal or housing discrimination investigations or if the lawyers are protecting themselves from possible criminal action.