Is recording others legal, and is it ethical?
And even if a surreptitious recording does not violate state law, it may still be unethical. In those instances, the committee was divided on whether such recordings violated the Model Rules.
But where a client was concerned, the committee was “unanimous, however, in concluding that it is almost always advisable for a lawyer to inform a client that a conversation is being or may be recorded before recording such a conversation.”
However, the committee did not go so far as to say that all secret recordings of clients were unethical. Instead, the opinion says it is not unethical for lawyers to secretly tape clients in two situations. The first is when “the lawyer has no reason to believe the client might object,” and the second is when “exceptional circumstances” exist.
“Exceptional circumstances might arise if the client, by his own acts, has forfeited the right of loyalty or confidentiality,” Opinion 01-422 reads.
“For example, there is no ethical obligation to keep confidential plans or threats by a client to commit a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm. Nor is there an ethical obligation to keep confidential information necessary to establish a defense by the lawyer to charges based upon conduct in which the client is involved.”
EXCEPTIONAL CIRCUMSTANCES
Legal experts generally agree with the approach taken by the ABA in its 2001 formal ethics opinion. “The committee’s conclusion is that for an attorney to secretly tape a client is inadvisable,” says Bast, whose 2008 article “Surreptitious Recording by Attorneys: Is It Ethical?” was published in the St. Mary’s Law Journal. “However, the committee did recognize exceptional circumstances in which it might be permissible for an attorney to secretly tape a client. These exceptional circumstances include a conversation in which a client discloses a plan to commit a serious crime.”
But experts note that the exceptional circumstances requirement can set up a chicken-and-egg scenario, leaving room to question whether the decision to record was ethical or not.
“It may be difficult to predict in advance of taping that the conversation will involve an exceptional circumstance,” Bast notes.
The key question, according to professor Stephen Galoob, who teaches professional responsibility at the University of Tulsa College of Law, is whether the attorney’s secret recording violates the fundamental duty of loyalty owed to a client.
“There are at least two ways that an attorney’s recording her client could violate the duty of loyalty,” Galoob says. “First, the recording might increase the risk that the client’s confidences will be betrayed. The idea here is that the duty of loyalty not only governs a lawyer’s actual behavior but also the possible results of that behavior. If a lawyer creates an unnecessary risk on behalf of the client, then the duty of loyalty is violated even if that risk never materializes. In the fiduciary context, the irresponsible risking is the wrong.”
Galoob explains that when a lawyer records a client, it increases the chances of inadvertent disclosure or “intentional disclosure, in Cohen’s case” of a client’s confidences.
For example, Galoob says Cohen well may have violated a duty of loyalty to Trump: “Even if Cohen didn’t plan to betray Trump at the time he recorded the conversations, I think there’s a sufficient basis for saying that he violated the duty of loyalty based on the risks that he created that such conversations would be disclosed in the future.”
This article was published in the January-February 2019 ABA Journal magazine with the title "To (Secretly) Tape or Not to Tape."
