WISBAR February 6, 2024

Can a Wisconsin lawyer record a conversation without telling the other person, when the recording is legal under one-party-consent law?

Short answer: It depends on who is recorded. The opinion concludes that recording clients, judges, or court personnel without their knowledge and consent violates the disciplinary rules, but recording opposing counsel or other third parties is not ordinarily prohibited in Wisconsin (a one-party-consent state). A lawyer may never falsely deny that a conversation is being recorded, and recording a client requires full informed consent.

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This page answers the general question as of 2024. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

Opinion EF-24-01 (February 6, 2024) addresses when a lawyer may record a conversation without telling the other participant, and withdraws prior Wisconsin Opinion E-94-5 while agreeing with its core conclusions. Wisconsin permits one-party-consent recording, so a nonconsensual recording is not a crime and does not violate SCR 20:8.4(b). The ethics question is whether such recording is "dishonest" or "deceptive" under SCR 20:8.4(c). The committee surveys the national split, traces the ABA's move from a flat prohibition in Formal Opinion 337 (1974) to the fact-specific approach of Formal Opinion 01-422 (2001), and concludes SCR 20:8.4(c) is neither an absolute bar nor blanket approval; the propriety of nonconsensual recording depends on the circumstances and, in particular, on who is being recorded.

The committee then applies that framework target by target. Recording clients without knowledge and consent violates SCRs 20:1.4(b) and 20:8.4(c), because trust is central to the lawyer-client relationship and clients are entitled to decide whether their communications are recorded; the committee extends E-94-5 beyond telephone calls to any client communication, including an in-person conversation captured on a smartphone. Recording judges or court personnel, whether in court or off the record, is impermissible because court operations are managed exclusively by the judiciary under SCR Chapter 61 and related authority, and surreptitious recording cannot be reconciled with that control or with the lawyer's duty under SCR 20:3.4(c) and the Attorney's Oath; the same approach applies to administrative law judges.

For opposing counsel and other third parties, the committee concludes nonconsensual recording is not a per se violation, consistent with ABA Formal Opinion 01-422, but it cautions lawyers to weigh the harm to working relationships and the lawyer's reputation. In all cases, a lawyer who is asked whether a conversation is being recorded may not give a false or misleading answer, which would violate SCRs 20:8.4(c) and 20:4.1(a). Finally, on consent, the committee holds that the disciplinary rules' "informed consent" standard in SCR 20:1.0(f) governs recording a client: a generic "this call may be recorded" notice is not enough, and the client must be told the purpose and risks and given the option to decline.

In practice

Under this opinion, conduct matching its fact pattern is treated as follows: recording a client, a judge, or court personnel without their knowledge and consent is prohibited, and recording a client requires informed consent that meets SCR 20:1.0(f), not a generic recorded notice. The committee concludes that recording opposing counsel or other third parties is not ordinarily prohibited in Wisconsin, but it cautions lawyers to consider the consequences. A lawyer asked whether a conversation is being recorded must answer truthfully.

Common questions

Q: Is secretly recording a conversation illegal for a Wisconsin lawyer?

A: No, recording is legal. The committee notes Wisconsin is a one-party-consent state, so nonconsensual recording is not a crime and does not violate SCR 20:8.4(b); the ethics question turns on SCR 20:8.4(c).

Q: Can a lawyer record a client without telling them?

A: No. The committee concludes recording a client without knowledge and consent violates SCRs 20:1.4(b) and 20:8.4(c), and that recording a client requires informed consent under SCR 20:1.0(f), including the option to decline.

Q: Can a lawyer record a judge or court staff?

A: No. The committee concludes lawyers may not record judges or court personnel, in or out of court, without their knowledge or permission, because court operations are managed by the judiciary and surreptitious recording conflicts with that control.

Q: Can a lawyer record opposing counsel or a witness?

A: Not ordinarily prohibited. The committee concludes, consistent with ABA Formal Opinion 01-422, that recording opposing counsel or other third parties is not a per se violation, while cautioning about the harm to relationships and reputation.

Q: Can a lawyer deny that a call is being recorded?

A: No. The committee concludes a false or misleading answer to whether a conversation is being recorded violates SCRs 20:8.4(c) and 20:4.1(a).

Background and rules framework

The opinion interprets SCR 20:8.4(c) / Model Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation) as the central rule, alongside SCR 20:8.4(b) (criminal acts), SCR 20:1.4(b) and 20:1.6 (communication and confidentiality, for client recordings), SCR 20:4.1(a) (truthfulness to third persons), SCR 20:3.4(c) (obeying tribunal rules, for recording court personnel), and SCRs 20:4.2 and 20:4.3 (contact with represented and unrepresented persons). It also applies the SCR 20:1.0(f) definition of informed consent and SCR Chapter 61 on recording in courtrooms.

Citations and references

Rules of Professional Conduct:

Wis. SCR 20:8.4(c) / Model Rule 8.4(c) (dishonesty, fraud, deceit, misrepresentation)
Wis. SCR 20:8.4(b) / Model Rule 8.4(b) (criminal acts reflecting on fitness)
Wis. SCR 20:1.4(b), 20:1.6 / Model Rules 1.4, 1.6 (communication; confidentiality)
Wis. SCR 20:4.1(a) / Model Rule 4.1 (truthfulness to others)
Wis. SCR 20:3.4(c) / Model Rule 3.4 (obeying obligations to a tribunal)

Statutes:

Wis. Stat. §§ 968.27, 968.31, 885.365 (one-party-consent recording; admissibility limits)

Other opinions cited:

ABA Formal Opinion 337 (1974): the original broad prohibition on nonconsensual recording
ABA Formal Opinion 01-422 (2001): nonconsensual recording is not per se misconduct where legal
Arizona Ethics Op. 95-03; Texas Professional Ethics Committee Op. 514 (1996): cautionary views

Source

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