Can a Virginia lawyer participate in, or direct an investigator to make, a lawful one-party-consent recording of someone who does not know they are being recorded?

Plain-English summary

The committee was asked to reconsider its prior opinions and decide whether a lawyer, or an agent acting under the lawyer's direction in an investigative capacity, may ethically participate in or advise a communication that is electronically recorded with one party's consent but without the other party's knowledge. The applicable rules are Rule 8.4 (misconduct, including conduct involving dishonesty, fraud, deceit, or misrepresentation) and Rule 5.3 (responsibilities regarding nonlawyer assistants).

The committee traced its earlier opinions (LEOs 1217, 1324, 1448, 1635), which, relying on the Virginia Supreme Court's decision in Gunter v. Virginia State Bar, had built a categorical, exception-free ban on any recording by or under the supervision of a lawyer, making Virginia apparently the only state recognizing no exception. The committee concluded those opinions swept too broadly. It read Gunter as limited to its facts: there the lawyer directed the surreptitious, non-consensual recording of an adversary's conversations with third parties (including her communications with her own attorneys) and used the fruits against her, a classic interception illegal under state and federal law. The Gunter court expressly declined to decide whether a lawyer may record a conversation to which the lawyer is a party.

The committee held that the categorical ban ignored legitimate, judicially sanctioned practices: law-enforcement undercover recording, "wired" cooperating witnesses, and Fair Housing Act discrimination testers, all of which involve lawful deception and are commonly supervised by lawyers. Reasoning that those methods are legal, long-established, and serve important social policies, the committee concluded Rule 8.4 does not prohibit a lawyer engaged in a criminal or housing-discrimination investigation from making otherwise lawful misrepresentations, nor from participating in or advising an otherwise-lawful one-party-consent recording, and that a lawyer may record a conversation involving threatened or actual criminal activity when the lawyer is the victim. Prior opinions are overruled to the extent inconsistent. The committee expressly declined to extend the opinion beyond the facts presented, reserving other situations for future inquiry, and noted any recording that violates the law would itself violate Rule 8.4 and that other rules (such as the bar on contact with represented parties) still apply.

Currency note

This opinion was issued in 2000. Virginia's Rules 8.4, 5.3, and 4.1, and the cited wiretap statutes, may have changed since, and later opinions (such as LEO 1802) have built on it. Verify against current rules before relying on any specific requirement mentioned here.

In practice

The opinion holds that, under the rules as they stood at the time, Virginia's former categorical ban on attorney-supervised recording is overruled in part. A lawyer engaged in a criminal or housing-discrimination investigation may make otherwise lawful misrepresentations and may participate in or advise an otherwise-lawful one-party-consent recording, and a lawyer who is the victim of threatened or actual criminal activity may record that conversation. The committee conditions these conclusions on the recording being lawful and on compliance with other rules (for example, the bar on contacting represented persons), and it declines to extend the holding beyond the facts presented.

Common questions

Q: Can a Virginia prosecutor direct a cooperating witness to wear a wire?

A: Under this opinion, yes, where the recording is otherwise lawful. The committee holds Rule 8.4 does not bar a lawyer engaged in a criminal investigation from participating in or advising an otherwise-lawful one-party-consent recording, overruling the prior categorical ban.

Q: Did this opinion overrule Virginia's old flat ban on lawyer recording?

A: In part. The committee held its prior opinions (LEOs 1217, 1324, 1448, 1635) swept too broadly and overruled them to the extent inconsistent, limiting Gunter v. Virginia State Bar to its facts.

Q: Can a lawyer record someone who is threatening them?

A: Yes. The committee opines it is not improper for a lawyer to record a conversation involving threatened or actual criminal activity when the lawyer is the victim of the threat.

Q: Does this let a lawyer secretly record an opposing party in a civil dispute generally?

A: No. The committee tied its holding to criminal and housing-discrimination investigations and expressly declined to extend the opinion beyond those facts, reserving other situations for later inquiry; Gunter-type non-consensual interception of an adversary remains improper.

Background and rules framework

The opinion interprets Rule 8.4 (misconduct, including conduct involving dishonesty, fraud, deceit, or misrepresentation, and committing or attempting a violation through the acts of another), Rule 5.3 (responsibilities regarding nonlawyer assistants), and Rule 4.1 (truthfulness in statements to others), against the backdrop of Gunter v. Virginia State Bar and ABA Formal Opinion 337's recognition of a limited law-enforcement exception. It treats Virginia's wiretap statutes (Va. Code §§ 19.2-62 et seq.; 18 U.S.C. § 2511) as defining what recording is lawful.

Citations and references

Rules of Professional Conduct:

• Virginia Rule 8.4(a)-(c) (misconduct; dishonesty, fraud, deceit; acts through another; former DR 1-102(A))
• Virginia Rule 5.3 (responsibilities regarding nonlawyer assistants)
• Virginia Rule 4.1(a) (truthfulness in statements to others)

Statutes:

• Va. Code §§ 19.2-62 et seq. (Virginia wiretap/interception statute)
• 18 U.S.C. § 2511(2)(c), (d) (federal one-party-consent provisions)
• Fair Housing Act, 42 U.S.C. § 3604(d)

Cases:

• Gunter v. Virginia State Bar, 238 Va. 617, 385 S.E.2d 597 (1989), surreptitious recording of third parties' conversations by a lawyer is conduct involving dishonesty, fraud, or deceit; limited to its facts here.
• Cogdill v. Commonwealth, 219 Va. 272 (1978); Havens Realty Co. v. Coleman, 455 U.S. 363 (1982); Lopez v. United States, 373 U.S. 427 (1963), lawful one-party recording and discrimination testers.

Other opinions cited:

• Virginia LEOs 1217, 1324, 1448, 1635: prior categorical ban, overruled in part by this opinion.
• ABA Formal Op. 337 (1974); Minnesota Op. 18 (1996); Ohio Op. 97-3 (1997): limited law-enforcement and related exceptions.

See also

• VA LEO 1802: Advising Clients to Record Lawfully
• VA LEO 1765: Lawyers in Federal Intelligence Work

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1738.pdf

Original opinion text

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

Committee Opinion
April 13, 2000
LEGAL ETHICS OPINION 1738

ATTORNEY PARTICIPATION IN
ELECTRONIC RECORDING WITHOUT
CONSENT OF PARTY BEING
RECORDED.

You have asked the committee to reconsider prior opinions and opine as to whether it
would be ethical under the Virginia Rules of Professional Conduct for an attorney to
participate in, or to advise another person to participate in, a communication with a third
party which is electronically recorded with the full knowledge and consent of one party to
the conversation, but without the knowledge or consent of the other party. Stated
differently, are there circumstances under which an attorney, or an agent under the
attorney's direction, acting in an investigative or fact-finding capacity, may ethically tape
record the conversation of a third party, without the latter's knowledge.
The applicable Rules of Professional Conduct are:
RULE 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist
or induce another to do so, or do so through the acts of another;
(b) commit a criminal or deliberately wrongful act that reflects adversely on the
lawyer's honesty, trustworthiness or fitness as a lawyer;
(c) engage in professional conduct involving dishonesty, fraud, deceit or
misrepresentation;
RULE 5.3 Responsibilities Regarding Nonlawyer Assistants
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in
effect measures giving reasonable assurance that the person’s conduct is compatible
with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make
reasonable efforts to ensure that the person’s conduct is compatible with the
professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a
violation of the Rules of Professional Conduct if engaged in by a lawyer if:

Committee Opinion
April 13, 2000
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the
conduct involved; or
(2) the lawyer is a partner in the law firm in which the person is employed, or has
direct supervisory authority over the person, and knows or should have known of
the conduct at a time when its consequences can be avoided or mitigated but fails
to take reasonable remedial action.
In its earliest opinion on the subject the committee addressed the issue of whether it is
ethical for a Virginia attorney to tape record a telephone conversation with opposing
counsel in pending litigation, concerning the subject matter of the litigation, without
informing the opposing counsel that the conversation is being recorded. LE Op. 1217
(1989). The committee concluded that even though such a recording may be permissible
under Virginia or federal law, it may nevertheless be improper under DR:1-102(A)(4) if
there are additional facts which would make such recording dishonest, fraudulent,
deceitful or a misrepresentation.
One year later, the committee was presented with a situation in which an attorney was
representing the wife in a divorce case. Prior to engaging the attorney, the wife had taperecorded her husband's conversations on a telephone in the marital home. The tape
recordings revealed the husband's intimate relationship with another woman. The
attorney instructed the wife to immediately cease any further recording. While the
committee did not decide whether the wife's conduct was unlawful (as this presented a
legal question beyond its purview), and the issue of the attorney's involvement in the tape
recording was not before the committee,1 the committee opined in LE Op. 1324 (1990):
. . . even if non-consensual tape recording of telephone conversations is not prohibited
by Virginia or federal law, a lawyer’s engaging in such conduct, or assisting a client
in such conduct, would be improper and violative of DR:1-102(A)(4) which prohibits
a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation which reflects adversely on a lawyer’s fitness to practice law. In
holding that a lawyer's advising a client to non-consensually tape record telephone
conversations was proscribed by DR:1-102(A)(4), the Supreme Court of Virginia
recently found that “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.” Gunter v. Virginia State
Bar, 238 Va. 617 (1989). (See also ABA Formal Opinion No. 337 (1974)).
In a later opinion, the committee concluded that even if non-consensual tape recordings
are not illegal, a lawyer may not participate in such activity nor advise a client to do so.
LE Op. 1448 (1992). In LE Op. 1448, an attorney represented a client who was the victim
of child abuse at the hands of her father. Suffering from severe emotional distress as an
adult, she consulted an attorney about a civil action against the father. The father and
client were still seeing each other, and, on occasion, the father freely admitted his sexual
abuse of the client. The question was whether the attorney could ethically advise the

Committee Opinion
April 13, 2000
client to secretly tape record her conversations with the father in order to capture the
father's testimony and corroborate her statement that the abuse had occurred. The
committee opined that to have the client initiate a meeting with the father, under false
pretenses, and secretly tape record their conversation, would be deceptive conduct. Thus,
the attorney could not advise the client to do that which the attorney could not do
directly. DRs 1-102(A)(2), 1-102(A)(4).
Finally, the committee applied the holding of LE Op. 1324 and LE Op. 1448 to prohibit
an attorney acting only as an officer or agent of a corporation from tape recording a
conversation between the attorney and a former employee of corporation with the
employee's knowledge or consent. LE Op. 1635 (1995).
LE Op. 1324, LE Op. 1448, and LE Op. 1635 relied on the Supreme Court of
Virginia's decision in Gunter v. Virginia State Bar, 238 Va. 617, 385 S.E.2d 597 (1989).
Attorney Eugene Gunter represented a husband having marital difficulties with his wife,
whom he suspected, was having an affair. Gunter employed an investigator to seek
evidence of the wife's infidelity, but no evidence was found. Gunter directed the
investigator to install a recording device on the phone of the marital home, which was
activated whenever the receiver was picked up and recorded all of the conversations. The
investigator reviewed the tape recordings and reported the substance of them to Gunter,
including communications the wife had with attorneys and legal advice concerning
divorcing her husband. After the device was removed, the wife discovered that it had
been in place and that her husband and Gunter were culpable. She reported this to the
state police and Gunter was indicted for conspiracy to violate the wiretap (intercept)
statutes (Va. Code §§ 19.2-62, et seq.). Gunter was tried by jury and acquitted.
Thereafter, the Virginia State Bar prosecuted Gunter for misconduct arguing that his
conduct was a crime or deliberately wrongful act reflecting adversely on his fitness to
practice law. DR:1-102(A)(3). Alternatively, the bar argued that regardless of whether
Gunter’s conduct was unlawful, it was unethical under DR:1-102(A)(4) as conduct
involving fraud, dishonesty, deceit or misrepresentation reflecting adversely on Gunter's
fitness to practice law. Gunter's appeal was based on the premise that his conduct was
found not to have violated the Wiretap Act. Because his conduct was found not illegal,
Gunter argued that his conduct could not be judged as unethical. The Court disagreed,
holding that “the recordation, by a lawyer or by his authorization, of conversations
between third persons, to which he is not a party, without the consent or prior knowledge
of each party to the conversation, is ‘conduct involving dishonesty, fraud, [or] deceit’
under DR:1-102(A)(4).” 238 Va. at 622 (emphasis added).
Gunter v. Virginia State Bar did not address whether it is unethical for an attorney to
tape record a telephone conversation in which the attorney is a participant, if the other
party to that conversation is unaware that it is being recorded. In its appellee brief, the
Virginia State Bar cited American Bar Association Formal Opinion 337 (1974), advising
that it is unethical for an attorney to record a conversation without the knowledge and
consent of all the parties, subject only to a limited exception for law enforcement
officials. The Court expressly declined to decide that issue:

Committee Opinion
April 13, 2000
The ABA Opinion, as well as the cited decisions of other courts, however, embrace
the recordation by a lawyer of conversations to which he is a party, a circumstance
not present in the case before us. We are not called upon to decide whether that
conduct violates DR:1-102(A)(4), and we expressly refrain from deciding that
question as well. Id. (emphasis added).
In addressing the questions presented, the committee assumes that the recording of a
conversation with the consent of one party to the conversation is not illegal under
Virginia or federal law.2 The recording of a conversation in violation of any law would
constitute a violation of Rule 8.4. In addition, the committee is mindful of the Court's
admonition in Gunter that the mere fact that particular conduct is not illegal does not
mean that such conduct is ethical. Lawyers are governed by the ethical standards in the
Rules of Professional Conduct, which require lawyers to do more than comply with civil
or criminal laws. However, the committee is concerned that its prior opinions have
expanded the holding in Gunter and created a categorical ban, without qualification or
exception, of any tape recording by an attorney or under the supervision of an attorney.
Of all the state bar opinions issued on this subject, Virginia appears to be the only state
that does not recognize any exception to the prohibition.
An unqualified prohibition ignores some important and compelling circumstances
where tape recording of conversations is a legitimate and effective investigative practice
for law enforcement authorities. Such law enforcement officials include attorneys or
agents working under their direction or supervision. Indeed, the authority cited by the
Virginia State Bar in Gunter, ABA Formal Opinion 337, at least recognized a limited
“law enforcement exception” to its prohibition of attorneys secretly tape recording
conversations:
There may be extraordinary circumstances in which the Attorney General of the
United States or the principal prosecuting attorney of a state or local government or
law enforcement attorneys might ethically make and use secret recordings if acting
within strict statutory limitations conforming to constitutional requirements.
As stated above, the ethics opinions issued by this committee to date do not recognize
any circumstances that would allow an attorney to secretly tape record his or her
conversations with another or direct another to do so. The committee concludes that its
prior opinions sweep too broadly and therefore they are overruled to the extent they are
inconsistent with this opinion.
The practical impact on law enforcement of an absolute prohibition of attorneysupervised tape recordings cannot be overlooked. If such recordings are deemed
prohibited, law enforcement counsel could not advise or instruct a crime victim or a
“contact person” in an extortion or kidnaping case to wear a wire or record a telephone
conversation with the suspect. Under our prior opinions, the lawful investigative
technique employed in Cogdill, supra, would be deemed unethical if an attorney had
advised the victim to wear a recording device and place such a device on her home
phone. Without such recordings, the evidence may well have been the victim's word

Committee Opinion
April 13, 2000
against the attorney's, making the case difficult, if not impossible, to prove beyond a
reasonable doubt. Similarly, law enforcement counsel and federal agents (many of whom
hold law licenses) are at risk of professional discipline if they participate in undercover
operations in which contacts with suspected criminals are recorded. To prohibit this
practice would impede law enforcement's capability to monitor the conduct of
cooperating individuals and protect them from harm in the event their identity was
discovered. Surveillance and recordings assist the police in conducting safe undercover
operations and guidance by attorneys ensures that these activities are done in accordance
with the law. Electronic and oral communications are often intercepted and recorded to
establish the alleged wrongdoer's intent and mental state, which may be essential
elements the government must prove at trial. Finally, since the prior opinions recognize
no “authorized by law” exception, a literal reading of those opinions would prohibit a
prosecutor from reviewing or approving wiretap applications or supervising those
wiretaps as required under state or federal law.
LE Op. 1635 goes even further to opine that it is unethical for an attorney to
surreptitiously tape record a telephone conversation with an unrepresented party, even
when the attorney is acting in a non-professional capacity outside of the attorney-client
relationship. In a situation where an attorney finds herself a victim of obscene,
threatening or harassing phone calls to her home, prior opinions would seem to hold that
it is unethical for the attorney to put a recording device on her own phone in order to
identify or prosecute the caller. See, e.g., Minn. Law. Prof. Resp. Bd. Eth. Op. 18 (1996)
(a lawyer who is the subject of a criminal threat should not be subject to discipline for
secretly recording the threat).
All of these scenarios demonstrate the need for limited exceptions and are far different
from the facts in Gunter. While Gunter was cited as authority for the opinions holding
that one-party consent tape recordings by an attorney are unethical, the committee
believes that the holding in Gunter should be limited to the facts in that case. At issue in
Gunter was the attorney's manner and purpose of the surreptitious, non-consensual
recording of his adversary's conversations with others. The recordings made under the
attorney's direction were made of third parties and without the consent of any parties to
the conversation. The committee is informed that this is a classic type of interception that
is illegal under federal and state law.3 Moreover, the attorney continued to intercept the
conversations of his client's wife after hearing her conversations with attorneys from
whom she was seeking legal advice concerning desertion, support, child custody and
property division, in contemplation of seeking a divorce from the attorney's client.
Finally, the attorney used the information gleaned from the non-consensual interception
to advise his client to take proactive steps in order to frustrate the wife's actions, based on
the advice given her by attorneys with whom she had consulted. As stated above, the
Court specifically refrained from deciding whether conversations between an attorney
and another person may be tape-recorded without that person's consent. The committee
does not construe the holding in Gunter as applicable to attorneys engaged in law
enforcement, or agents under their control, who tape record conversations of suspects and
witnesses, where such activity comply with federal and state law, and where other ethical
rules, i.e., contacts with represented parties, have not been breached.

Committee Opinion
April 13, 2000

The law has long recognized that law enforcement may employ tape recording in
undercover operations. See Lopez v. United States, 373 U.S. 427 (1963). In addition, the
courts have recognized that deception in the search for truth is justified in some
circumstances in both the law enforcement and private realms. Sorrells v. United States,
287 U.S. 435, 441 (1932) (artifice and stratagem are “frequently essential to the
enforcement of the law” in order to “reveal criminal design; to expose illicit traffic, the
prohibited publication, the fraudulent use of the mails, the illegal conspiracy, or other
offenses, and thus to disclose the would-be violators to the law”); Hampton v. United
States, 425 U.S. 484, 495 n.7 (1976) (Powell, J., concurring) (stating that contraband
offenses “are so difficult to detect in the absence of undercover Government
involvement”); United States v. Russell, 411 U.S. 423, 432 (1973) (asserting that
infiltration of drug rings, the only practicable means of detecting unlawful conduct, is a
recognized and permissible means of investigation); Hamilton v. Miller, 477 F.2d 908,
909 n.1 (10th Cir. 1973) (“it would be difficult indeed to prove discrimination in housing
without [the tester's] means of gathering evidence”). Prior opinions of this committee
disregard these decisions, and, when read literally, prohibit any sort of undercover
activity or misleading behavior if conducted, directed or supervised by a member of the
bar.
The courts have also approved one party consent tape recording in certain civil
investigations. In housing discrimination cases, testers have long been approved by the
courts as a valid means to enforce the Fair Housing Act of 1968, which creates an
enforceable right to truthful information concerning the availability of housing. 42 U.S.C.
§3604 (d); Havens Realty Co. v. Coleman, 455 U.S. 363 (1982) (tester given false
information concerning availability of housing by realtor suspected of “racial steering”
has standing to sue despite lack of actual interest in the subject property). See also Spann
v. Colonial Village, Inc., 899 F.2d 24 (D.C. Cir. 1990) (housing organization had
standing to sue under Fair Housing Act using evidence gathered by testers); Richardson
v. Howard, 712 F.2d 319 (7th Cir. 1983) (observing that the evidence obtained by testers
is frequently indispensable and that the requirement of deception is a relatively small
price to pay to defeat racial discrimination); Northside Realty Associates v. United States,
605 F.2d 1348, 1355 (5th Cir. 1979) (holding that testers acted legally and sought only
publicly available information and that “the element of deceit has no significant effect”);
Zuch v. Hussey, 394 F. Supp. 1028 (E. D. Mich. 1975), aff'd and remanded, 547 F.2d
1168 (6th Cir. 1977) (evidence gathered by testers may be the only competent evidence
available to prove unlawful conduct).
The current prohibition also creates a dilemma for an attorney who relies on
investigators in criminal or civil matters. If the lawyer directly supervises police or other
non-lawyer investigators who employ tactics that are regarded as unethical, then such
behavior is imputed to the lawyer who faces discipline. Rules 5.3(c)(1) and 8.4(a). To
avoid these consequences, the lawyer may choose to exercise no control or supervision
over the investigator. This can result in police being deprived of critical legal guidance
or, in a civil case, an unsupervised investigation in which important matters may have
been overlooked that might have been discovered had the investigator been supervised.

Committee Opinion
April 13, 2000

The scenarios described in your request for opinion involve far more artifice and stealth
than merely using a recording device to capture a conversation. The “testing” scenario
typically entails more deception and fabrication than the tester surreptitiously recording
conversations (i.e., misrepresentation of identity, qualifications, financial ability, intent or
purpose) in order for the investigation to succeed. The same can be said for participants
in law enforcement undercover operations. The most obvious example is the police
officer misrepresenting himself as a drug dealer. In fact, very few criminal conspiracies
could be infiltrated without the use of outright deceit and deception on the part of
prosecuting attorneys and the law enforcement officers they supervise. Both realms
involve the use of misrepresentation by the investigator and the investigations are likely
to be supervised by lawyers. Thus, on their face, setting aside the tape recording issue,
these activities involve conduct violative of Rules 4.1(a), 5.3(c) and 8.4(a) and (c). Yet, in
the housing discrimination cases, Congress specifically created a cause of action for the
tester, knowing full well that testers have no interest in purchasing the subject property
and that their purpose is to expose discrimination by falsely posing as a prospective
buyer. Fair Employment Council of Greater Washington v. BMC Marketing Corp., 28
F.3d 1268, 1271-72 (D.C. Cir. 1994) (it did not matter whether the testers merely posed
as interested renters or purchasers because regardless of their intentions the statute gave
them an enforceable right to truthful information about the availability of housing).
Despite the fact that these law enforcement and testing practices are longstanding and
widespread, there have been no reported judicial decisions or ethics committee opinions
addressing the ethical propriety of a lawyer directing such practices. David B. Isbell
& Lucantonio N. Salvi, Ethical Responsibility of Lawyers for Deception by
Undercover Investigators and Discrimination Testers: An Analysis of the Provisions
Prohibiting Misrepresentation Under the Model Rules of Professional Conduct, 8 Geo. L.
J. Legal Ethics 791, 794 (1995) (“Isbell”). However, some bar opinions have created
some limited exceptions under which an attorney or an agent under his control may tape
record their conversations with another without the other person's knowledge. In certain
limited circumstances, the interests served by surreptitious recordings outweigh the
interests protected by prohibiting such conduct through professional standards. Minn.
Law. Prof. Resp. Bd. Eth. Op. 18 (1996) (ethical rules against tape recording do not
prohibit a government lawyer charged with criminal or civil law enforcement authority
from making or directing others to make a recording of a conversation without the
knowledge of all parties to the conversation and do not prohibit a lawyer engaged in the
prosecution or defense of a criminal matter from recording a conversation without the
knowledge of all parties to the conversation); Ohio Bd. Com. Griev. Disp. Adv. Op. 97-3
(1997) (recognized exceptions to the prohibition on surreptitious recording include
prosecuting and law enforcement attorney exception; criminal defense attorney
exception; and extraordinary circumstances exception).
In the facts you present, the committee acknowledges that the conduct of undercover
investigators and discrimination testers acting under the direction of an attorney involves
deception and deceit. The conduct about which you have inquired arises in the context
where information would not be available by other means and without which an

Committee Opinion
April 13, 2000
important and judicially-sanctioned social policy would be frustrated. These methods of
gathering information in the course of investigating crimes or testing for discrimination
are legal, long-established and widely used for socially desirable ends.
As a result, the committee is of the opinion that Rule 8.4 does not prohibit a lawyer
engaged in a criminal investigation or a housing discrimination investigation from
making otherwise lawful misrepresentations necessary to conduct such investigations.
The committee is further of the opinion that it is not improper for a lawyer engaged in
such an investigation to participate in, or to advise another person to participate in, a
communication with a third party which is electronically recorded with the full
knowledge and consent of one party to the conversation, but without the knowledge or
consent of the other party, as long as the recording is otherwise lawful. Finally, the
committee opines that it is not improper for a lawyer to record a conversation involving
threatened or actual criminal activity when the lawyer is a victim of such threat.
The committee recognizes that there may be other factual situations in which the lawful
recording of a telephone conversation by a lawyer, or his or her agent, might be ethical.
However, the committee expressly declines to extend this opinion beyond the facts cited
herein and will reserve a decision on any similar conduct until an appropriate inquiry is
made.

1

The issue in LE Op. 1324 was whether the attorney could use the tapes which the wife had made prior to
engaging the attorney, not the propriety of an attorney or agent making a non-consensual recording of a
conversation with another.

2

§ 19.2-62(A)(2), Code of Virginia of 1950, as amended; 18 U.S.C. § 2511(2)(c) and (d); Cogdill v.
Commonwealth, 219 Va. 272, 247 S.E.2d 392 (1978) (tape recording of conversation between woman and
attorney who was trying to procure her for prostitution where recording was made by a woman using
recording device on her phone did not violate wiretap laws; Wilks v. Commonwealth, 217 Va. 885, 234
S.E.2d 250 (1977) (not unlawful for a person to intercept a wire or oral communication if such person is a
party to the communication or if one of the parties to the verbal exchange has given prior consent to the
interception); See also 85-86 Va. AG 132 (1985) (party to a communication who tape records without other
party's knowledge falls under exception contained in Va. Code § 19.2-62(B)(2)); 87-88 Va. AG 67 (1988)
(neither recording of telephone conversation to which one is a party nor subsequent disclosure of recorded
communication violates Va. Code §§ 19.2-62, et seq.).
3

In Gunter, the Virginia State Bar took the position that notwithstanding his acquittal, the attorney
nevertheless violated the wiretap laws, and thus violated DR:1-102(A)(3) (criminal act). 238 Va. at 621.
The Court held, however, that the legality of the attorney's acts was immaterial to its analysis. Id.