Opinion Barring Secret Recording of
Conversations is Repealed
by
Kenneth L. Jorgensen, First Assistant Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Minnesota Lawyer (June 3, 2002)
At its April 18, 2002, meeting, the
Lawyers Professional Responsibility Board repealed Opinion No. 18, which made
it unethical for lawyers to secretly record conversations with others. The
repeal of Opinion No. 18 followed the lead of the American Bar Association
(ABA) in changing its longstanding position condemning the surreptitious, but
legal, recording of conversations by lawyers.
ABA reconsideration
In June 2001, the ABA issued Formal
Ethics Opinion 01-422, which withdrew its previous opinion (Formal Opinion 337)
that had been in effect since 1974 prohibiting secret recording. The reasons proffered by the ABA for
abandoning its general prohibition against secret recording were:
·
The belief that nonconsensual
recording of conversations is inherently deceitful, a concept embraced by the
ABA in 1972, is not universally accepted today. Secret recording of conversations is now an accepted practice by
law enforcement, private investigators and journalists. Moreover, courts routinely admit evidence
obtained through secret recordings.
·
The existence of
circumstances in which requiring disclosure of the recording could defeat a
legitimate and necessary activity (e.g., documenting criminal threats,
protecting against witness perjury, use of testers in discrimination and quasi‑governmental
investigations).
·
Unlike the prior code of
professional responsibility, the existing Rules of Professional Conduct do not
include the antiquated admonition to “avoid even the appearance of
impropriety.” Instead, Rule 4.4 now
expressly limits lawyer methods of obtaining evidence to those that “violate
the legal rights of such a person.” Since nonconsensual recordings are lawful
in the vast majority of states, they do not violate the rights of the person
who was unknowingly recorded.
Despite reversing its general
position on secret recording, the ABA cautioned lawyers about activities
related to now permissible nonconsensual recording that could subject lawyers
to violations of the Rules of Professional Conduct.
First, lawyers should be aware that
although federal law, and most state law, permits recording with the consent of
only one party to the conversation, some states prohibit recordings unless
consent has been obtained from all parties to the conversation. In addition, lawyers who falsely deny their
secret recording of conversations would likely violate Rule 4.1 prohibiting
false statements of material fact to a third person.
Finally, the ABA Ethics Committee
was divided over whether lawyers can ethically record client conversations
without their consent. In
differentiating client conversations with those involving third parties, the committee
cited the lawyer’s duty of loyalty to the client. Without resolving whether it is “ethical” for a lawyer to record
a client conversation, the committee unanimously agreed that it was “almost
always inadvisable” for a lawyer to record a client conversation without
disclosure.
Minnesota reconsideration
For the most part,
Minnesota Lawyers Board opinions constitute interpretations or clarifications
of the Minnesota Rules of Professional Conduct. Opinion No. 18 was premised upon the belief that secret recording
of conversations by lawyers was inherently deceitful and therefore unethical
except in the limited circumstances enumerated in the opinion. The comment to Opinion No. 18 relied
principally upon the ABA opinion from 1977 for the proposition that secret
recording was inherently deceitful and therefore violated the ethical
standards.
The Minnesota Rules of
Professional Conduct generally prohibit lawyers from engaging in conduct that
involves deceit. See Rule
8.4(c). A number of states, like
Minnesota, have, since 1974, issued ethics opinions concluding that secret
recording was deceitful and therefore unethical. However, given the ABA’s recent change of heart, and its
rationale, the Minnesota Lawyers Board was doubtful about whether secret recording
by itself continued to fall clearly within the deceit proscription of Rule
8.4(c).
It was this doubt that led
the board to withdraw or repeal Opinion No. 18. In repealing the opinion, the board and its opinion committee
echoed the concerns expressed by the ABA.
Lawyers should be aware, however, that secret recording is illegal in
some states and therefore prohibited by Rule 4.4.
Moreover, lawyers who
falsely deny recording conversations will be subject to discipline under Rules
4.1 and 8.4(c). And finally, although
it may not be unethical to record client conversations, except in very limited
circumstances (e.g., client is making criminal threats to the lawyer) it is
certainly inadvisable to do so without disclosure.