Can a Virginia lawyer advise a client to make a lawful undisclosed recording of someone, such as a one-party-consent recording?

Plain-English summary

The committee addresses whether a lawyer may advise a client to engage in undisclosed recording of another person's communications or actions. It first sets the legal backdrop: federal law and more than two-thirds of states permit "one-party consent" recording (Virginia Code Section 19.2-62(B)(2)), while other states require all-party consent, and recording with no party's consent is generally a felony. Because a lawyer cannot counsel illegal or fraudulent conduct (Rule 1.2(c)), legality matters to the analysis.

Neither the Virginia Rules nor the ABA Model Rules expressly address undisclosed recording (the Virginia State Bar's 2006 petition to add Rule 8.4 comments was rejected by a divided Court), so the committee works from Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation reflecting on fitness) and related rules: Rule 4.4 (rights of third parties), Rule 4.2 (no recording to contact a represented person), Rule 8.4(a) (acting through another) and 8.4(b) (criminal acts), and Rule 1.2(c). It concludes lawful undisclosed recording with a reasonable purpose that does not violate the subject's rights does not by itself violate Rule 4.4 or Rule 8.4(c).

The committee reviews its history. Gunter v. Virginia State Bar held that a lawyer's authorized, non-consensual wiretapping of third parties was dishonest under former DR 1-102(A)(4), but the Supreme Court of Virginia expressly declined to decide whether one-party-consent recording is unethical. The committee acknowledges that later opinions (LEO 1448, 1635) conflated Gunter into a near-blanket ban, and that LEO 1738 and LEO 1765 began carving out exceptions (a "law enforcement exception"; approved intelligence activities) and overruled prior opinions to the extent inconsistent.

The opinion then balances the duty of diligent, competent advice (Rules 1.3, 1.4, 1.2(a)) against duties to third parties and gives two examples where advising lawful undisclosed recording is permissible: a lawyer advising an adult sexual-abuse survivor to record a meeting with her unrepresented abuser who has admitted the abuse, and in-house counsel advising that a complaining employee wear a recording device to capture a coworker's harassing remarks. In both, the recording is lawful, may be the only way to obtain relevant evidence, and violates no one's legal rights. The committee overrules LEO 1448 to the extent it is inconsistent.

In practice

The opinion holds that, under the Virginia rules, a lawyer may advise, suggest, or recommend that a client make a lawful one-party-consent undisclosed recording when it serves a reasonable purpose and does not violate the recorded person's rights; doing so does not violate Rule 8.4(c) directly or through Rule 8.4(a). Per the opinion, undisclosed recording becomes improper when joined with other conduct that is illegal or deceitful, such as recording a person known to be represented (Rule 4.2) or operating under pretext (Rule 8.4(c)). The opinion overrules LEO 1448 and stresses the lawyer's countervailing duty under Rules 1.3 and 1.4 to advise the client of lawful means to pursue the client's objectives.

Common questions

Q: Can a lawyer tell a client to secretly record a conversation the client is part of?

A: The opinion says yes, where the recording is lawful (such as one-party consent), has a reasonable purpose, and does not violate the recorded person's rights; that advice does not by itself violate Rule 8.4(c).

Q: Is undisclosed recording unethical per se in Virginia?

A: No. The opinion concludes undisclosed recording is not unethical in itself; Gunter condemned non-consensual wiretapping of third parties but expressly left open one-party-consent recording.

Q: When does advising a client to record cross the line?

A: The opinion says it crosses the line when coupled with other improper conduct, such as recording someone the lawyer knows is represented by counsel (Rule 4.2) or using fraud, pretext, or illegality (Rule 8.4(b), (c)).

Q: Does this change earlier Virginia opinions?

A: Yes. The opinion overrules LEO 1448 to the extent it is inconsistent, and builds on LEO 1738 and LEO 1765, which had already narrowed the broad reading of Gunter.

Background and rules framework

The opinion interprets Rule 8.4 (Model Rule 8.4), especially 8.4(c) on dishonesty and deceit and 8.4(a)/(b), together with Rule 1.2(c) (Model Rule 1.2) barring assistance with illegal or fraudulent conduct, Rule 4.4 (Model Rule 4.4) on the rights of third parties, Rule 4.2 on represented persons, and the diligence and communication duties of Rules 1.3 and 1.4. It applies Gunter v. Virginia State Bar and the committee's LEOs 1217, 1324, 1448, 1635, 1738, and 1765.

Citations and references

Rules of Professional Conduct:

• Model Rule 8.4 / Virginia Rule 8.4(a), (b), (c) (misconduct; dishonesty, fraud, deceit; acting through another)
• Model Rule 1.2 / Virginia Rule 1.2(a), (c) (means of representation; no assistance with illegal or fraudulent conduct)
• Model Rule 4.4 / Virginia Rule 4.4 (rights of third parties)
• Model Rule 1.3, 1.4 / Virginia Rules 1.3, 1.4 (diligence; communication)

Statutes:

• Virginia Code Section 19.2-62(B)(2) (one-party-consent interception)

Cases:

• Gunter v. Virginia State Bar, 238 Va. 617, 385 S.E.2d 597 (1989) (authorized non-consensual wiretapping of third parties is deceitful conduct)

Other opinions cited:

• Virginia LEOs 1217, 1324, 1448 (overruled in part), 1635, 1738, 1765 (undisclosed recording)
• ABA Formal Op. 01-422 (secret electronic recording)

See also

• VA LEO 1814: Undisclosed Recording of Third Parties
• ABA Formal Op. 01-422: Secret Electronic Recording by Lawyers

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1802.pdf

Original opinion text

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

Committee Opinion
September 29, 2010
LEGAL ETHICS OPINION 1802

ADVISING CLIENTS ON THE USE OF
LAWFUL UNDISCLOSED RECORDING .

A. Introduction
In this opinion, the Committee will address whether it is ethical for a lawyer to advise a client
to engage in the undisclosed recording of the communications or actions of another. To address
this question, the Committee will review its prior opinions on these issues.
This opinion focuses on the ethical implications of a lawyer advising clients regarding the use
of undisclosed recording. Towards that end, the Committee finds it necessary to discuss the
legality of undisclosed recording, because many states’ ethics rules or opinions hinge on whether
such recording is legal. 1 Fundamentally, a lawyer cannot advise a client to engage in conduct
that is illegal or fraudulent. Rule 1.2(c). Federal law and more than two-thirds of the states
permit “one party consent recording.” This means that undisclosed recording is legal if one of
the parties to a communication—the recorder—is aware of and consents to the recording.
Virginia Code Section 19.2-62(B)(2) states that “[i]t shall not be a criminal offense under this
chapter for a person to intercept a wire, electronic or oral communication, where such person is a
party to the communication or one of the parties to the communication has given prior consent to
such interception.” Under the remaining states’ laws, undisclosed recording is illegal unless all
parties to the communication consent to the recordation. 2 Finally, subject to some very stringent
exceptions, federal and state law makes it a felony to record communications in which no party
has consented. In addition, federal and state law makes it a crime to use any communication that
has been unlawfully intercepted.
B. Relevant Standards and Rules
The Rules of Professional Conduct adopted by the states, including Virginia and the ABA
Model Rules of Professional Conduct, do not specifically address undisclosed recording.
However, undisclosed recording does implicate a number of other general ethics rules. 3 First
and foremost, Virginia Rule 8.4(c) states that it is “professional misconduct for a lawyer to . . .
engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects
adversely on the lawyer’s fitness to practice law.” Prior to the adoption of Virginia Rule 8.4, DR
1-102(A)(4) of the former Virginia Code of Professional Responsibility had a nearly identical
1

See, e.,g. ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 01-422 (2001)(A lawyer who
electronically records a conversation without the knowledge of the other party or parties to the conversation does not
necessarily violate the Model Rules if the act of secretly recording is not illegal in the jurisdiction). See also n.7,
infra.
2
Cal Penal Code § 692; Kimmel v. Goland, 793 P.2d 524 (Cal. 1990) (Court adopted a per se ban on lawyer
participation and tape-recording calls without everyone’s consent.); Connecticut General Statutes Section 52-570d
(makes it illegal and civilly actionable for any person to secretly record an oral private telephone communication by
means of an instrument, device or equipment, except under certain delineated circumstances.) See also Conn. Bar
Ass’n.Eth. Op. 98-9; Florida Security of Communications Act, § 934.06, Fla. Statutes Annotated; Md. Code § 10402 (requires consent of all parties); Mass. Wiretap Statute requires all parties to consent to record. M.G.L.A., ch.
272, §99; see also Commonwealth v. Hanedania, 51 Mass. Ct. App. 64, 742 N.E.2d 1113 (2001).
3
Some states may have explicit language addressing secret recording in commentary to their rules of conduct.

Committee Opinion
September 29, 2010
prohibition. In 2006, the Virginia State Bar petitioned the Supreme Court of Virginia to adopt
comments to Rule 8.4 specifically addressing undisclosed recording. 4 However, the Bar’s
petition was rejected by a divided Court without comment. Consequently, lawyers must turn to
this Committee’s prior opinions rather than the Rules for specific guidance on the use of
undisclosed recording.
The question presented is whether a lawyer may advise a client to engage in undisclosed
recording without violating Rule 8.4(c)’s prohibition of deceitful conduct. Ethics rules that
address a lawyer’s duties to clients, third parties, opposing counsel, or the court may also apply
to the situation. For example, Rule 4.4 covers respect for the rights of third parties—it prohibits
any means of obtaining evidence that violate a third party’s legal rights or have no substantial
purpose other than to embarrass, delay, or burden a third person. Because one-party consent
recording is not illegal in most states, as long as the undisclosed recording has a reasonable
purpose and does not violate the rights of the subject of the recording, it will not violate Rule 4.4.
While undisclosed recording may not by itself violate Rule 4.4, it may be coupled with other
conduct that may be illegal or unethical. For example, it would be unethical for a lawyer in a
civil matter to advise a client to use lawful undisclosed recording to communicate with a person
the lawyer knows is represented by counsel. Rule 4.2. Similarly, it would be unethical for a
lawyer in private practice to advise a client to employ lawful undisclosed recording under
pretextual circumstances, i.e., using conduct involving fraud, dishonesty, deceit, or
misrepresentation. Rule 8.4(c). 5 Also relevant to the analysis is Rule 8.4(a) because a lawyer
cannot violate or attempt to violate the Rules of Professional Conduct by directing a third party,
such as the client or an investigator, to engage in conduct prohibited by the Rules. Further, if the
undisclosed recording is illegal, Rule 8.4(b) makes it professional misconduct for a lawyer to
commit a crime or a deliberately wrongful act that reflects adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer. 6 Finally, Rule 1.2(c) forbids a lawyer from counseling or
assisting the client in conduct that is illegal or fraudulent.
C. Prior Legal Ethics Opinions
Many of the states originally issued ethics opinions that adopted the position that undisclosed
recording was either generally improper although subject to some limited exceptions or per se
unethical. 7 Not all states subscribed to this view and, more recently, a number of states have
4
At the recommendation of this Committee the Virginia State Bar petitioned the Court to add comments to Rule
8.4 that would have permitted undisclosed recording if the recording: a) is lawful, b) is consented to by one of the
parties to the transaction, c) is in furtherance of an investigation on behalf of a client, d) is not effectuated by means
of any misrepresentations, and e) the means by which the communication or event was recorded and the use of the
recording do not violate the legal rights of another.
5
See, e.g. Nissan Motor Co., Ltd. v. Nissan Computer Corp., 180 F.Supp.2d 1089 (C.D. Cal. Jan. 14, 2002)
(recordation of conversations between counsel in normal course of civil litigation, without consent, is violation of
California penal law and is inherently unethical.)
6
However, lawyers conducting governmental law enforcement investigations may ethically use undisclosed
recording in communicating with persons represented by counsel in non-custodial, pre-indictment settings and may
use artiface or pretext through the use of “testors” in housing discrimination enforcement investigations to
communicate with the targets of the investigation who may be recorded. See Va. Legal Ethics Op. 1738, infra.
7
AK Eth. Op. 91 4, 1991 WL 786535 (June 5, 1991) (No lawyers should record any conversation whether by tape
or other electronic device, without the consent or prior knowledge of all parties to the conversation.); SC Adv. Op.
91-14 (July 1991)(An attorney may not advise a client to tape record the client's conversations with his spouse);

Committee Opinion
September 29, 2010
reversed or significantly revised their opinions to allow undisclosed recording. 8 Significantly,
this Committee’s very first ethics opinion on the subject did not impose a per se or general ban
on undisclosed recording, but instead took the view that undisclosed recording only violates
ethical rules when it occurs in conjunction with other unethical conduct.
Minnesota Ethics Op. 18 (1996)(It is professional misconduct for a lawyer, in connection with the lawyer's
professional activities, to record any conversation without the knowledge of all parties to the conversation, subject to
some exceptions); New York City Bar Ass’n Eth. Op. 1995-10(A lawyer may not tape record a telephone or inperson conversation with an adversary attorney without informing the adversary that the conversation is being
taped); Supreme Court of Ohio Board of Commissioners on Grievances and Discipline, Opinion Number 97-3 (June
13, 1997)(An attorney in the course of legal representation should not make surreptitious recordings of his or her
conversations with clients, witnesses, opposing parties, opposing counsel, or others without their notification or
consent); Supreme Court of Texas Professional Ethics Committee Opinion Number 514 (1996)(attorneys may not
electronically record a conversation with another party without first informing that party that the conversation is
being recorded); People v. Wallin, 621 P.2d 330 (Colo. 1981) (attorney’s secret recording of telephone conversation
of a witness held unethical); In re Anonymous Member of the South Carolina Bar, 304 S.C. 342, 404 S.E.2d 513
(1991)(absolute prohibition: an attorney may not record without consent regardless of the purpose or intent); Indiana
State Bar Ass’n Op. 1(2000)(undisclosed recording unethical); Iowa State Bar Op. 83-16 (1983)(undisclosed
recording unethical); Comm. on Prof. Ethics & Conduct of Iowa State Bar Ass’n v. Mollman, 488 N.W.2d 168 (Iowa
1992) (attorney’s use of tape recorder to record conversations with former clients as part of attorney’s cooperation
with law enforcement investigation held improper); Idaho Bar Ass’n Formal Op. 130 (1989)(prohibits surreptitious
tape recording as a violation of Rule 8.4 (d)).
8
Alabama Bar Op. 83-183 (1983); Arizona Bar Op. 00-04 (2000) (An attorney may ethically advise a client that
the client may tape record a telephone conversation in which one party to the conversation has not given consent to
its recording, if the attorney concludes that such taping is not prohibited by federal or state law.); Hawaii SupCt,
Formal Op. 30 (Modification 1995) (not per se unethical for lawyer to engage in undisclosed recording; whether
conduct is deceitful must be determined on a case-by-case basis); Mich. Bar Ass’n Op. RI-309 (1998) (Whether a
lawyer may ethically record a conversation without the consent or prior knowledge of the parties involved is
situation specific, not unethical per se, and must be determined on a case by case basis); Attorney M. v. Mississippi
Bar, 621 So.2d 220 (Miss. 1992)(attorney's surreptitious taping of two telephone conversations with doctor who was
a potential codefendant in medical malpractice suit did not violate rule of professional conduct, as conduct did not
rise to level of dishonesty, fraud, deceit, or misrepresentation); Missouri Bar Ass’n Ethics Op. 123 (3/8/06)(allowing
lawyer/participant to tape record telephone communication if it is not prohibited by law); New York City Bar Ass’n
Ethics Op. 2003-02 (Lawyers may not routinely tape-record conversations without disclosing that the conversation
is being taped, but they may secretly record a conversation where doing so promotes a generally accepted societal
benefit);New York County Lawyers' Ass'n, Op. 696 (1993) (not unethical per se for a lawyer to record his or her
conversations without the consent or prior knowledge of the other parties to the conversation); NC Eth. Op. RPC
171 (1994) (not a violation of the Rules of Professional Conduct for a lawyer to tape record a conversation with an
opposing lawyer without disclosure to the opposing lawyer.); Okla, Bar Ass’n Ethics Op. 307 (1994) (Lawyers have
the same rights as other citizens, and may therefore record conversations to which they are a party); Or. State Bar
Op. 1999-56 (1999) (if the substantive law does not prohibit recording a lawyer may do it unless his conduct would
otherwise cause the other person to believe they are not being recorded); 86-F-14 (a) and Comment 5 to RPC 8.4
which states. "The lawful secret or surreptitious recording of a conversation or the actions of another for the
purpose of obtaining or preserving evidence doe not, by itself, constitute conduct involving deceit or dishonesty." In
2003, the Tennessee Supreme Court amended the commentary to Rules 4.4 and 8.4 of the Tennessee Rules of
Professional Conduct so as make clear that the secret recording of conversations was not unethical per se. See also
State Bar of Texas Legal Ethics Op. 575 (Nov. 2006) (if undisclosed recording is not a crime the Texas RPC do not
prohibit a Texas lawyer from making undisclosed recording) overruling State Bar of Texas Op. 514 (1996) (an
attorney may not record without the other party’s consent but may advise client that such recording is not a crime
under Texas law as long as one participant to the conversation is the recorder; attorneys held to a higher standard);
Utah State Bar Ethics Op. 96-04 (Recording conversations to which an attorney is a party without prior disclosure to
the other parties is not unethical when the act, considered within the context of the circumstances, does not involve
dishonesty, fraud, deceit or misrepresentation); Wisconsin Bar Op. E-94-5 (the Wisconsin RPCs do not support a
blanket rule prohibiting or permitting surreptitious tape recording; determination of whether Rule 8.4 has been
violated must be fact-specific on a case-by-case basis; routine recording would almost always violate the rule).

Committee Opinion
September 29, 2010
In LEO 1217, we addressed the issue of “whether it is ethical for a Virginia attorney to tape
record a telephone conversation occurring wholly in Virginia with opposing counsel in a pending
civil litigation, concerning the subject matter of the litigation, without notifying opposing
counsel their conversation is being recorded.” We decided that “a lawyer’s engaging in such
conduct may be improper and violative of DR:1-102(A)(4) if there are additional facts which
would make such tape recording dishonest, fraudulent, deceitful or misrepresentational [sic].”
(emphasis added).
Later that same year, the Supreme Court of Virginia decided Gunter v. Virginia State Bar, 238
Va. 617, 385 S.E.2d 597 (1989). In Gunter, a husband hired a lawyer in a domestic relations
matter in which he suspected the wife of having an affair. After consulting with the client, the
lawyer suggested installing a recording device on the parties’ marital telephone. 9 The husband
authorized an investigator to install a device that was activated each time the telephone receiver
was picked up. The lawyer and investigator listened to these recordings, but did not obtain any
evidence of the wife’s infidelity; however, by listening to the tapes, the lawyer did learn that his
client’s wife had consulted other lawyers regarding divorce proceedings. She discussed with
others the advice she had received. Upon learning through the surreptitious recordings that the
wife had possession of some joint tax refund checks, the lawyer advised his client to close a joint
bank account so that the wife could not cash them. The tape recorder was removed out of fear
that the wife would discover it. The wife subsequently discovered reports from the lawyer to the
client disclosing the fact that her conversations had been recorded. She complained to the state
police and the lawyer was indicted for conspiracy to violate the wiretapping statute. Following a
jury trial, Mr. Gunter was acquitted, but a district committee brought lawyer disciplinary charges
against Mr. Gunter. All of the charges were dismissed by the district committee except one—
that Mr. Gunter had engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation
in violation of DR 1-102(A)(4), which was certified to the Disciplinary Board. Mr. Gunter opted
for a trial by a three-judge court which found that he violated the cited rule. Mr. Gunter appealed
to the Supreme Court of Virginia.
The Court ruled that the recordation, by a lawyer or by his authorization, of telephone
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). At issue in Gunter was the lawyer’s manner and purpose of the
surreptitious, non-consensual recording of his adversary's conversations with others. The
recordings made under the lawyer’s direction were made of third parties and without the consent
of any parties to the conversation. Although the lawyer was acquitted of criminal charges, this is
a classic type of interception that is illegal under federal and state law. Mr. Gunter’s investigator
did not attach a tape recorder to the marital phone, nor did he use the telephone to acquire the
conversations. Rather, he used a wiretap and a recorder. Moreover, the lawyer continued to
intercept the conversations of his client’s wife after hearing her conversations with friends
discussing the advice provided by lawyers to her in contemplation of seeking a divorce from the
lawyer’s client. Finally, the lawyer 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,
9

Both parties were still living in the marital home and the husband was the subscriber to the telephone and the
billing account was in his name.

Committee Opinion
September 29, 2010
based on the advice given her by the other lawyers with whom she had consulted. The Virginia
Supreme Court held that “[t]he surreptitious recordation of conversations authorized by Mr.
Gunter in this case was an ‘underhand practice’ designed to ‘ensnare’ an opponent. It was more
than a departure from the standards of fairness and candor which characterize the traditions of
professionalism.” Gunter v. Virginia State Bar, 238 Va. at 622.
In Gunter, the Virginia State Bar argued that the conduct complained of did indeed violate the
wiretapping laws, notwithstanding Mr. Gunter’s acquittal of the criminal conspiracy charge, but
that even if it was not unlawful, it was unethical, and fell within the prohibition of DR 1102(A)(4). 10 The bar argued that more is expected of a lawyer than to refrain from criminal
conduct. The Court agreed, stating:
The lowest common denominator, binding lawyers and laymen alike, is the statute
and common law. A higher standard is imposed on lawyers by the Code of
Professional Responsibility, many parts of which proscribe conduct which would
be lawful if done by laymen ….
It follows that conduct may be unethical, measured by the minimum requirements
of the Code of Professional Responsibility, even if it is not unlawful. It is
therefore immaterial whether the conduct complained of in the present case
violates the wiretapping laws, and we expressly refrain from deciding that
question. 238 Va. at 621.
The Gunter decision, and in particular the above oft-quoted passage—described by some as
dicta—formed the basis for a series of legal ethics opinions on undisclosed recording that
followed. Importantly, the Supreme Court of Virginia made clear that it was not deciding
whether “one-party consent recording” would be unethical. The Court observed that “the
recordation by a lawyer of conversations to which he is a party . . . [is] 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.” 238 Va. at 622.
Nevertheless, the quoted language in Gunter has been applied by this Committee over the years
to prohibit one-party consent recordings as deceitful conduct in violation of DR 1-102(A)(4) and
now Rule 8.4(c).
The next year, in LEO 1324 (1990), the Committee had an opportunity to address the use of
undisclosed recordings delivered to a lawyer by the wife whom he represented in a domestic
relations matter. Prior to engaging the lawyer, the wife explained that she had secretly taped her
husband’s conversations on the telephone in the marital home revealing her husband’s intimate
involvement with another woman. The lawyer asked the Committee if it would be ethical to use
the recordings. Because the client had already taped the conversations before the professional
engagement, the lawyer was not a co-conspirator or accessory to the means by which the tapes
were obtained. Therefore, the Committee opined that it would not be improper to use them. 11
10

The Virginia State Bar argued "[s]tripped to its essentials, appellant's position is that if it's legal, it's ethical.”
Gunter, supra, 238 Va. at 621.
11
Whether the tapes could be lawfully used or admitted into evidence are entirely separate issues beyond the
purview of this Committee and therefore not addressed in its legal ethics opinions. Nevertheless, this Committee

Committee Opinion
September 29, 2010
Tangentially, the Committee cited to Gunter, warning that even if the non-consensual recording
was not illegal under federal or state law, a lawyer’s engaging in such conduct or assisting a
client in such conduct violates DR 1-102(A)(4). Arguably, the Committee’s reference to and
reliance on Gunter was not necessary to decide the narrow question before it; however, the
Gunter decision was new, the decision had been referenced in the opinion request, and the facts
presented in the opinion involved nonconsensual recording in a somewhat similar context. LEO
1324 was the Committee’s first post-Gunter opportunity to warn the bar and to provide guidance
about the ethical implications if the lawyer had directed the client to engage in nonconsensual
recording. Finally, unlike one-party consent recording, the undisclosed recordings in LEO 1324
were of conversations between the husband and third parties, none of whom had consented to the
recording.
Legal ethics opinions that followed did, however, conflate the Gunter decision resulting in a
blanket ban on lawyers using or even advising their clients to use one-party consent recording;
that is, undisclosed recording of conversations in which they are a participant. As noted above,
the Supreme Court of Virginia in Gunter specifically declined to decide whether it was unethical
for a lawyer to engage in the undisclosed recording of a conversation with another in which the
lawyer is a participant.
LEO 1448 is an example where the Committee evidently interpreted the decision in Gunter as
banning undisclosed recording (even where one party to the conversation consented), reaching
the conclusion that it would be unethical for a lawyer to advise his client to tape record
conversations with her father. The client was allegedly sexually abused by her father when she
was a child, and in some conversations the father had freely admitted his sexual abuse of her.
The lawyer proposed that the client arrange to meet with her father and record their conversation.
The Committee cited Gunter and LEO 1324, and opined: “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.” LEO 1448 does not disclose what facts were
involved that indicated the client was going to “initiate a conversation under possibly false
pretenses[.]” The Committee in LEO 1448 also noted:
…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. [DRs 1-102(A)(2) and (4), 7-102(A)(8), 7-103(B);
LEOs Nos. 233, 848, 1170, 1217, 1324; Gunter v. Virginia State Bar, 238 Va. 617
(1989)].
In LEO 1635, the Committee again relied on an expansive view of Gunter, concluding that a
corporation’s attorney engaged in misconduct by using an undisclosed recording device to tape a
conversation with a recently discharged employee, to which the lawyer was a party, citing a

warns that a lawyer must carefully consider applicable criminal and civil law in determining whether to use an
intercepted recording.

Committee Opinion
September 29, 2010
violation of DR 1-102(A)(4). No discussion was provided regarding how the fact pattern
involved “dishonesty, fraud, deceit, or misrepresentation.”
In LEO 1738, the Committee addressed some rather compelling scenarios in which the
seemingly unqualified ban on lawyer involvement with one party consent recording was not only
impractical, but frustrated important public policy. The Committee concluded that its prior
opinions disapproved of a lawyer’s use of one party consent recording under any circumstances
and found it necessary to carve out what has been termed a “law enforcement exception.” 12 The
requesting party asked the Committee “to reconsider prior opinions and opine as to whether it
would be ethical under the Virginia Rules of Professional Conduct for a lawyer 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, in the context of
legitimate government law enforcement investigations, are there circumstances under which a
lawyer, or an agent under the lawyer’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?”
In LEO 1738, this Committee reviewed its previous opinions and stated that:
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.
The Committee decided that its previous decisions were too broad in their reach. The opinion
continues:
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. (emphasis added).
Following a discussion of well-recognized and judicially approved practices in which
government lawyers supervised undercover criminal investigations conducted by agents who
employed deception and undisclosed recording, the Committee stated in LEO 1738 that “[a]ll of
these scenarios demonstrate the need for limited exceptions and are far different from the facts in
Gunter.” (emphasis added).
The Committee stated in LEO 1738 that there are at least three circumstances where such
recording would be ethical: in a criminal investigation, in a housing discrimination investigation,
12

In LEO 1765 the Committee described LEO 1738 as identifying a “law enforcement” exception to nonconsensual recording.

Committee Opinion
September 29, 2010
and in situations involving threatened or actual criminal activity in which the recording lawyer
was the victim. Moreover, the Committee expressly stated:
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.
(emphasis added).
In LEO 1765, the requester inquired whether the “various lawful activities performed by
federal attorneys as part of the federal government’s intelligence and/or intelligence work”
would be ethically permissible even though they involved use of methods such as “alias
identities” and nonconsensual tape-recording. The Committee, citing LEO 1738 and its analysis,
concluded that such lawful intelligence activities were ethically permissible. In reaching this
conclusion, the Committee also emphasized the “new language of Rule 8.4(c) [Prof. Conduct
Rule 8.4(c)], with its additional language limiting prohibition only to such conduct that ‘reflects
adversely on the lawyer’s fitness to practice law.’” LEO 1765 went on to state that “[t]o the
extent that anything in this opinion is in contradiction to the language in LEO 1217, that opinion
is overruled.” LEO 1765 was approved by the Supreme Court of Virginia (2004). 13
An important principle reiterated in LEO 1765 is that conduct that is legal may nevertheless be
unethical for a lawyer. LEO 1765 relied on Gunter v. Virginia State Bar, 238 Va. 617 (1989), to
conclude that a lawyer may properly be prohibited from particular conduct under the Rules of
Professional Conduct even where such conduct is legal. 14 The ethical rules for lawyers properly
impose responsibilities on the profession beyond doing merely what is legal. While these
principles are important, they must also be balanced against the lawyer’s ethical obligations to
the client. In this opinion, we examine two situations in which we believe that a lawyer may
ethically advise or counsel a client to use lawful undisclosed recording to obtain information
relevant to the client’s legal matter.
D. Advising Clients to Use Lawful Undisclosed Recording
First Example
In the first example, the Committee reexamines the hypothetical presented in LEO 1448. B, a
father, sexually abused A, his daughter, for an extended period of time during her childhood. B’s
sexual abuse of A constituted a felony. As is the case with many victims of sexual abuse, A
repressed her memories of this abuse and could not recall its nature or extent until after she
received therapy as an adult. As a result of this abuse, A suffers from several substantial
psychological disorders and has received extensive therapy including hospitalizations to treat or
13

Generally, a legal ethics opinion is advisory only and not binding on any court or tribunal. Va. S. Ct. R., Pt.6,
§IV, ¶10 (b)(vi). However, if an advisory opinion such as LEO 1765 is reviewed and approved by the Supreme
Court of Virginia, it becomes a decision of the Court. Id. at ¶ 10 (g)(iv).
14
This principle from Gunter was relied upon in U.S. v. Smallwood, 365 F. Supp.2d. 689 (E.D. Va. 2005) with
regard to the tape-recording of witnesses.

Committee Opinion
September 29, 2010
manage these disorders. A has contacted a lawyer to consider a possible civil claim against B for
damages resulting from his abuse of her. There is little corroborating evidence and the claim is
essentially A’s word against B’s. A has continued to have contact with B who has freely
admitted, in prior conversations with A, his sexual abuse of her. A’s lawyer suggests that A
arrange a meeting with B and unbeknownst to B, makes an undisclosed recording of their
conversation. B is not currently represented by counsel.
In LEO 1448, the Committee concluded that the lawyer’s suggestion to A was improper
because the lawyer was using the client to do indirectly what the lawyer was prohibited from
doing directly, i.e., unethically tape record the conversation with B and improperly communicate
with an unrepresented person. 15 Rule 8.4(a) states that “it is professional misconduct for a
lawyer to . . . 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.” 16
The Committee opines that the concerns regarding fairness to third parties must not be viewed
in isolation, but must be considered along with a lawyer’s duty to diligently pursue the legal
objectives of his client, pursuant to Rule 1.3. Comment [1] to Rule 1.3 directs an attorney to “act
with commitment and dedication to the interests of the client and with zeal in advocacy upon the
client’s behalf.” It is an essential part of a lawyer’s legal judgment to pursue his role as advocate
within the ethical bounds established throughout the Rules of Professional Conduct. Rule 1.2 (a)
states, inter alia, that “a lawyer shall consult with the client as to means by which [the client’s
objectives] are to be pursued.” Rule 1.2(c) states that “a lawyer shall not counsel the client to
engage, or assist the client, in conduct that the lawyer knows is criminal or fraudulent . . . .”
Moreover, Rule 1.4 (b) states that, “a lawyer shall explain a matter to the extent reasonably
necessary for the client to make informed decisions regarding the representation; and Rule 1.4(c)
states that “a lawyer shall inform the client of facts pertinent to the matter. . . .” Comment [5] to
Rule 1.4 states that, “the client should have sufficient information to participate intelligently in
decisions concerning the objectives of the representation and the means by which they are to be
pursued.” (emphasis added).
In balancing these competing interests, the Committee believes that A’s lawyer may advise,
suggest or recommend that A lawfully record her conversation with B, without disclosing to B
that their conversation is being recorded. Clients consult with lawyers for solutions to legal
problems and expect lawyers to suggest the means, within the bounds of the law and the Rules of
Professional Conduct, by which to achieve their objectives. A’s lawyer is not violating or
attempting to violate the Rules of Conduct through the actions of A by advising A that she may
record conversations with B. Rather, A’s lawyer is advising A of a legal course of conduct,
which may or may not be acted upon by the client. In so doing, A’s lawyer is discharging her
ethical obligation to advise the client of lawful means by which the client’s objectives may be
achieved. By analogy, the Committee observes that the drafters of the Rules of Conduct
15

See, e.g., DR 7-103 now Rule 4.3. This rule does not ban entirely a lawyer’s communications with an
unrepresented person, but only those communications in which the lawyer acts disinterested or is giving legal
advice if that person’s interests conflict with the interests of the lawyer’s client. It is not clear to the Committee how
this rule was violated under the facts presented in LEO 1448.
16
Rule 8.4 (a) is essentially the same as DR 1-102(A)(1) relied on in LEO 1448. DR 1-102(A)(2) stated that a
lawyer shall not “circumvent a Disciplinary Rule through actions of another.”

Committee Opinion
September 29, 2010
concluded that a lawyer should be permitted to advise a client, whom the lawyer is representing
on a civil claim, of the right to file criminal or disciplinary charges against their adversary
without being deemed to have violated Rule 3.4(i) indirectly through the actions of the client. 17
To the extent that prior Legal Ethics Opinion 1448 (1992) is inconsistent with this opinion, it is
hereby overruled.
Second Example
In the second example, a lawyer conducting an ongoing internal investigation of employee
misconduct within a company may consider when and under what circumstances the lawyer may
ethically use or direct another to use lawful, undisclosed recording to gather information in the
representation of a client. A hypothetical will facilitate the discussion:
Able is in-house counsel for Company B. At the suggestion of a manager, an
employee of Company B goes to Able’s office and complains that she is being
subjected to a hostile work environment because a co-worker repeatedly makes
sexually offensive remarks in the workplace. The coworker has been questioned
about this on a number of occasions and denies the other worker’s claims.
Management asks Able for advice on what to do. Able recommends that the
coworker be equipped with an undisclosed device to record the coworker’s
remarks. Able has researched the applicable law and concluded that the proposed
recording does not violate any law.
Has Able violated Rule 8.4(c) directly or indirectly via Rule 8.4(a) by advising Management to
have the complaining employee wear a hidden recoding device? Using the analysis applied in
the first example, the Committee opines that Able has not violated Rule 8.4(c) directly or
indirectly.
As indicated in this opinion, Legal Ethics Opinions 1738 and 1765 provide specific and limited
exceptions to the general rule that a lawyer cannot use or direct an agent to use lawful but
undisclosed recording in gathering evidence. The hypotheticals in this opinion clearly do not fit
within these specific and limited exceptions. However, those opinions acknowledged that there
may be other circumstances under which a lawyer may use or advise another to use lawful
undisclosed recording.
E. Conclusion
Gunter, supra, and LEOs 1738 and 1765 did not present situations in which the Supreme Court
of Virginia or the Committee were required to balance a lawyer’s duty to competently and
diligently advise a client regarding lawful means by which to conduct an investigation against
the Virginia State Bar’s and the Court’s disapproval of undisclosed recording. In both of the
17

See Comment [5], Virginia Rule 3.4(h):
Although a lawyer is prohibited by paragraph (h) from presenting or threatening to present criminal or disciplinary
charges solely to obtain an advantage in a civil matter, a lawyer may offer advice about the possibility of criminal
prosecution and the client’s rights and responsibilities in connection with such prosecution.

Committee Opinion
September 29, 2010
above examples, the Committee faces situations in which the client has asked the lawyer for his
or her opinion on how to address the client’s legal problem. The proposed undisclosed
recording is not only lawful, but could very well be the only means by which the client may
obtain relevant information. Nothing that the lawyer has suggested or recommended to the client
violates the legal rights of the person whose statements are to be recorded. The Supreme Court
of Virginia in the Gunter decision did not rule that undisclosed recording with the consent of one
of the parties to the conversation was “deceitful” conduct and expressly declined to decide that
issue. This Committee believes that the circumstances presented in both examples are easily
distinguishable from and stand in stark contrast to the illegal wiretapping case presented in
Gunter. Both examples are situations that require the lawyer to weigh the competing ethical
obligations of a lawyer’s duties to third parties against those owed to the client.
This opinion is advisory only, based only on the facts presented and not binding on any court
or tribunal.