Can a Virginia criminal defense lawyer, or an agent, secretly record an interview with an unrepresented third-party witness, and must the lawyer disclose his role?

Plain-English summary

A criminal defense lawyer wanted to record an interview, after identifying himself, with an unindicted, unrepresented co-conspirator (B) whose statement would help the client (A), fearing B would later change his story to cut a deal. The committee was asked to reconsider its prior opinions and decide whether the lawyer (or an agent) may lawfully record a third party without that party's consent, and whether the lawyer must disclose his role.

The opinion traces the committee's evolving treatment of undisclosed recording. LEO 1217 and a line of opinions after Gunter v. Virginia State Bar generally treated non-consensual recording as improper under former DR 1-102(A)(4) and Rule 8.4(c), with narrow exceptions (law enforcement, housing-discrimination testers, lawyer-as-crime-victim) recognized in LEO 1738 and extended in LEO 1765. The committee notes many states have since revised their positions to permit case-by-case undisclosed recording, and that LEO 1802 had already concluded a lawyer may advise a client to use lawful undisclosed recording, balancing fairness to third parties against the duty of diligent representation under Rule 1.3. Reading Gunter as not deciding that one-party-consent recording is "deceitful," the committee concludes that a criminal defense lawyer's use of lawful undisclosed recording to interview witnesses or prepare the case is not deceptive conduct reflecting adversely on fitness under Rule 8.4(c).

On the second question, the committee applies Rule 4.3, which bars a lawyer dealing with an unrepresented person from stating or implying disinterest and requires reasonable efforts to correct any misunderstanding of the lawyer's role. Because undisclosed recording raises the risk that an unrepresented party will misunderstand the lawyer's or agent's role, the lawyer bears a higher burden to ensure the person understands it (citing Louisiana State Bar Ass'n v. Harrington and In re Air Crash Disaster Near Roselawn). The lawyer or agent must assure the unrepresented third party is aware of the lawyer's or agent's role. The opinion overrules LEO 1217 and LEO 1438 to the extent they conflict.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, a criminal defense lawyer or supervised agent may use lawful undisclosed recording to interview witnesses or prepare a case without violating Rule 8.4(c). Per the opinion, the lawyer or agent must still comply with Rule 4.3 by ensuring the unrepresented third party understands the lawyer's or agent's role, a burden the opinion treats as heightened when the recording is undisclosed.

Common questions

Q: Can a criminal defense lawyer secretly record a witness interview in Virginia?

A: The opinion concludes that lawful undisclosed recording, used to preserve a witness's statement or prepare the case, does not violate Rule 8.4(c), reversing the committee's earlier near-blanket prohibition.

Q: Does the lawyer have to tell the unrepresented witness who he is?

A: Yes. The opinion applies Rule 4.3 and says the lawyer or agent must ensure the unrepresented person understands the lawyer's or agent's role, a duty heightened by the secret recording.

Q: Does the recording itself have to be legal?

A: Yes. The opinion's conclusion is limited to lawful recording; it addresses ethics, not whether a given recording complies with state or federal wiretap law.

Background and rules framework

The opinion interprets Rule 8.4(c) (Model Rule 8.4, dishonesty and misrepresentation) and Rule 4.3 (Model Rule 4.3, dealing with unrepresented persons), against the duties of competence and diligence (Rules 1.1 and 1.3). It reads Gunter v. Virginia State Bar narrowly and builds on the committee's prior recording opinions (LEOs 1217, 1738, 1765, 1802), overruling LEOs 1217 and 1438 in part.

Citations and references

Rules of Professional Conduct:

• Model Rule 8.4(c) / Virginia Rule 8.4(c) (dishonesty, fraud, deceit, misrepresentation)
• Model Rule 4.3 / Virginia Rule 4.3 (dealing with unrepresented persons)
• Model Rule 1.1 / Virginia Rule 1.1 (competence)
• Model Rule 1.3 / Virginia Rule 1.3 (diligence)

Cases:

• Gunter v. Virginia State Bar, 238 Va. 617 (1989) (illegal wiretapping; the committee reads it as not deciding one-party-consent recording)
• Louisiana State Bar Ass'n v. Harrington, 585 So. 2d 514 (La. 1990); In re Air Crash Disaster Near Roselawn, 909 F. Supp. 1116 (N.D. Ill. 1995) (Rule 4.3 duty to disclose role)

Other opinions cited:

• Virginia LEOs 1217, 1738, 1765, 1802 (recording line); LEOs 1217 and 1438 overruled in part

See also

• VA LEO 1845: Covert Tactics in Unauthorized-Practice Investigations
• ABA Formal Op. 07-445: Contact With Putative Class Members
• ABA Formal Op. 472: Communication With a Limited-Scope Client

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1814.pdf

Original opinion text

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

Committee Opinion
May 3, 2011
LEGAL ETHICS OPINION 1814

UNDISCLOSED RECORDING OF
THIRD PARTIES IN CRIMINAL
MATTERS

In this hypothetical, a Criminal Defense Lawyer represents A who is charged with
conspiracy to distribute controlled substances. An unindicted co-conspirator, B, who is
unrepresented by counsel, has information and will give a statement that will prove helpful to
A’s defense, for example, that A’s involvement and participation in the conspiracy was nominal.
B has other charges against him pending that are unrelated to the conspiracy with which A has
been charged. A has told Criminal Defense Lawyer that B has been contacted by law
enforcement authorities in regard to the investigation of the charges against A. Criminal Defense
Lawyer is concerned that B might change his story to give a less favorable statement about A in
order to negotiate a more favorable disposition of the charges against B. To preserve B’s
statement, Criminal Defense Lawyer wants to record an interview with B after identifying
himself before B could consider changing his statement later. At the very least, Criminal
Defense Lawyer reasons, he/she will be able to attack B’s credibility in the event B testifies
against A and B’s statement is inconsistent with the statement B gave during the recorded
interview.
QUESTIONS PRESENTED
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 a Criminal Defense
Lawyer to participate in, or employ an agent to participate in, a communication with a third party
which is being 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 Criminal Defense Lawyer, or an agent under his/her direction, acting
in an investigative or fact-finding capacity, may ethically tape record the conversation of a third
party, without the latter’s knowledge?
Also, your question raises a second question. Under the Virginia Rules of Professional
Conduct, must a Criminal Defense Lawyer participating in, or employing an agent participating
in, a communication with a third party which is being recorded with the full knowledge and
consent of one party to the conversation, but without the knowledge or consent of the other party,
inform that other party of the lawyer’s role in the matter under discussion? Stated differently,
must Criminal Defense Lawyer or his/her agent inform the third party that he/she is the
defendant’s lawyer or an agent of the defendant’s lawyer?
APPLICABLE RULES & OPINIONS
The applicable Rules of Professional Conduct are Rule 1.1, 1 requiring a lawyer to render
competent representation to a client; Rule 1.3 2, requiring the lawyer to act with diligence in
1

Rule 1.1. Competence. A lawyer shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Committee Opinion
May 3, 2011
representing a client; Rule 4.3, dealing with unrepresented persons 3; and Rule 8.4, 4 prohibiting
the lawyer, or the lawyer’s agent, from engaging in deceitful conduct that reflects adversely on
the lawyer’s fitness to practice law. Also pertinent to the Committee’s analysis are LEOs 1217,
1738, 1765 and 1802.
ANALYSIS
You have requested reconsideration of prior LEOs 1217 and 1738. Each of those
opinions involved the tape-recording of conversations by lawyers or by non-lawyers at their
direction without consent of all parties to the conversations. LEO 1217, the earliest opinion of
the Committee on the subject, concluded that even though an undisclosed recording may be
permissible under Virginia or federal law, it may nevertheless be improper under DR 1102(A)(4) if there are additional facts which would make such recording dishonest, fraudulent,
deceitful or a misrepresentation. After LEO 1217 was issued, the Virginia Supreme Court
decided Gunter v. Virginia State Bar, 238 Va. 617 (1989) and during the next 11 years this
committee issued opinions generally prohibiting non-consensual recordings as unethical. LEO
1738 considered whether the general prohibition against the non-consensual tape-recording by
lawyers should yield to some exceptions including undercover law enforcement investigations,
housing discrimination testing and situations in which the recording lawyer was the victim of a
crime. The Committee in LEO 1738 reviewed that conduct with regard to former Rule 8.4(c)’s
prohibition against “conduct involving dishonesty, fraud, deceit, or misrepresentation” and
Gunter. Prior legal ethics opinions have cited Gunter for the general proposition that “the mere
fact that particular conduct is not illegal does not mean that such conduct is ethical,” as well as
for the more specific proposition that just because a lawyer may legally tape-record a particular
conversation does not necessarily mean he/she is permitted to do so under the ethics rules. See,
LEO 1738. The Committee opined that, in most instances, undisclosed recording is improper
conduct under DR 1-102(A)(4). However, the Committee identified three necessary exceptions:
lawyers working in law enforcement or in connection with housing discrimination testers and
where the lawyer is the victim of either the threat or actual commission of criminal activity. The
Committee clarified that this list of exceptions was not necessarily an exhaustive list; the opinion
acknowledges that there may be “other factual situations in which the lawful recording of a
2

Rule 1.3. Diligence. (a) A lawyer shall act with diligence and promptness in representing a client.

3

Rule 4.3 Dealing With Unrepresented Persons.
(a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply
that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person
misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the
misunderstanding.
(b) A lawyer shall not give advice to a person who is not represented by a lawyer, other than the advice to secure
counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interest of the
client.
4

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; (c) engage
in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer’s fitness
to practice law.

Committee Opinion
May 3, 2011
telephone conversation by a lawyer, or his or her agent, might be ethical.” The opinion suggested
that the Committee would await a subsequent specific inquiry before addressing any other
possible scenarios.
Many of the states originally issued ethics opinions stating that undisclosed recording
was either generally improper or per se unethical, subject to some limited exceptions. Not all
states subscribed to this view and more recently a number of states have reversed or significantly
revised their opinions to allow undisclosed recording. 5
This change in how the organized bar regards undisclosed recording, coupled with this
committee’s view that some of its prior opinions overextended the application of the Gunter
decision, influenced the Committee’s view of undisclosed recording in LEO 1802. The issue
presented in LEO 1802 was whether a lawyer may ethically advise or suggest to a client that
lawful, but undisclosed recording be used by the client to gather information relevant to a legal
matter. In LEO 1802 the Committee concluded that, in determining when to use undisclosed
recording, a lawyer must balance his/her obligations to fairness to third parties with a lawyer’s
duty to pursue diligently the legal objectives of his/her client, pursuant to Rule 1.3. Comment
[1] 6 to Rule 1.3 directs a lawyer 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
5

In Arizona Bar Opinion 00-04 (2000) a lawyer 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 lawyer
concludes that such taping is not prohibited by federal or state law. In the Hawaii Superior Court, Formal Op. 30
(Modification 1995), it is not per se unethical for lawyer to engage in undisclosed recording; whether such conduct
is deceitful must be determined on a case-by-case basis. In Michigan Bar Association Opinion 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. In Attorney M. v.
Mississippi Bar, 621 So.2d 220 (Miss. 1992), the lawyer'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. The Missouri Bar Association Ethics
Opinion 123 (3/8/06), allows the lawyer/participant to tape record telephone communication if it is not prohibited by
law. In New York City Bar Association Ethics Opinion 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. In the Oregon State Bar Opinion 1999-56 (1999), if
the substantive law does not prohibit recording a lawyer may do it unless his/her conduct would otherwise cause the
other person to believe they are not being recorded. The Tennessee Supreme Court amended the commentary to
Rules 4.4 and 8.4 of the Tennessee Rules of Professional Conduct in 2003 to make clear that the secret recording of
conversations was not unethical per se. In Utah State Bar Ethics Opinion 96-04, recording conversations to which a
lawyer 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.
6

Rule 1.3, Comment [1]: A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or
personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate a
client's cause or endeavor. A lawyer should act with commitment and dedication to the interests of the client and
with zeal in advocacy upon the client's behalf. However, a lawyer is not bound to press for every advantage that
might be realized for a client. A lawyer has professional discretion in determining the means by which a matter
should be pursued. See Rule 1.2. A lawyer's work load should be controlled so that each matter can be handled
adequately.

Committee Opinion
May 3, 2011
legal judgment to pursue his/her role as advocate within the ethical bounds established
throughout the Rules of Professional Conduct. Gunter, supra, and LEOs 1738 and 1765 did not
present situations in which the Supreme Court of Virginia or the Committee were asked to
balance a lawyer’s duty to advise a client competently and diligently regarding lawful means by
which to conduct an investigation against the Virginia State Bar’s and the Court’s disapproval of
undisclosed recording.
In LEO 1802, a client wishing to bring a civil suit for past sexual abuse with little
corroborating evidence and a client seeking evidence of a hostile work environment because a
co-worker repeatedly makes sexually offensive remarks in the workplace, sought advice from the
lawyer on how to address the client’s legal problem. The undisclosed recording the lawyer
proposed 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
violated the legal rights of the person whose statements are to be recorded. Further, as the
Committee noted in LEO 1802, 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
undisclosed recording considered in LEO 1802 and the circumstances you present stand in stark
contrast to the illegal wiretapping case presented in Gunter. Both present situations requiring the
lawyer to weigh the competing ethical obligations of a lawyer’s duties to third parties against
those owed to the client.
In LEO 1765, the Committee extended LEO 1738’s list of exceptions to include lawful
use of non-consensual recording performed by federal lawyers as part of the federal
government’s intelligence work. As suggested by the closing language of LEO 1738, the
Committee contemplated that there may be additional circumstances in which a lawyer may use
or direct others to use undisclosed, but lawful recording without violating 8.4(c); the Committee
agrees with the requester that a Criminal Defense Lawyer’s use of lawful undisclosed taperecording under the circumstances described in the request is not deceptive conduct under Rule
8.4(c) that “reflects adversely on the lawyer’s fitness to practice law.”
As to the second question, Rule 4.3(a) states that when a lawyer is dealing on behalf of a
client with a person not represented by counsel, such as the potential witness in the hypothetical
above, not only shall a lawyer not state or imply that the lawyer is disinterested, but when a
lawyer knows or reasonably should know that the unrepresented person misunderstands the
lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the
misunderstanding.
In interpreting Rule 4.3(a) in this hypothetical, the Committee opines that with
undisclosed tape-recording there is a higher risk of the unrepresented party misunderstanding the
lawyer or the lawyer’s agent’s role, which correspondingly places a higher burden on the lawyer
or the lawyer’s agent to ensure that the unrepresented person does not misunderstand the lawyer
or the agent’s role. The Committee finds it persuasive that in some jurisdictions, when a lawyer
contacts an unrepresented party on behalf of a client, the lawyer must identify him/herself and his/her
representational role. See Louisiana State Bar Ass’n v. Harrington, 585 So.2d 514, 517 (La. 1990)
(lawyer’s failure to identify himself as a lawyer or carefully explain role in matter violated Rule 4.3

Committee Opinion
May 3, 2011
of the Rules of Professional Conduct of the Louisiana State Bar Association); In re Air Crash
Disaster Near Roselawn, Indiana on October 31, 1994, 909 F.Supp. 1116, 1123 (N.D. Ill. 1995)
(questionnaire sent to Defendant’s employees that did not disclose on its face the fact that it was
prepared on behalf of plaintiffs’ attorney and implied that it was of a neutral and unbiased character
violated Rule 4.3 of Rules of Professional Conduct for the Northern District of Illinois). 7

Accordingly, the Committee opines that when a Criminal Defense Lawyer or an agent
acting under their supervision uses lawful methods, such as undisclosed tape-recording, as part
of his/her interviewing witnesses or preparing his/her case, those methods cannot be seen as
reflecting adversely on his/her fitness to practice law; therefore, such conduct will not violate the
prohibition in Rule 8.4(c).
The Committee further opines that when a Criminal Defense Lawyer or an agent acting
under his/her supervision uses lawful methods, such as undisclosed tape-recording, as part of
his/her interviewing witnesses or preparing his/her case, the lawyer or his/her agent must assure
that the unrepresented third party is aware of the lawyer or agent’s role.
To the extent that anything in this opinion is in contradiction to the language in LEO
1217 or LEO 1438, that opinion is overruled.
This opinion is advisory only, based only on the facts you presented and not binding on
any court or tribunal.

7

The rules in these two cases were modeled after Rule 4.3 of the Model Rules of Professional Conduct, which
provides that: “In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not
state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the
unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to
correct the misunderstanding.”