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OBA Ethics Counsel

Ethics Opinion No. 307

Adopted March 5, 1994

INQUIRY

Is it unethical for an Oklahoma licensed attorney or anyone acting on his/her behalf, while engaged in the practice of law, to record conversations with persons without obtaining the consent of those persons to the recording?

OPINION

Lawyers have the same rights as other citizens, and may therefore record conversations to which they are a party.

The Rules of Professional Conduct do not expressly address whether an attorney may or may not record conversations with other persons. There is no question that, as long as the attorney is a party to the conversation, tape recording without consent is legal under both federal and Oklahoma law. See 18 U.S.C. § 2511(d); Okla. Stat. tit. 13 §176.4 (Supp. 1989). The fact that the practice is lawful, however, does not automatically render the activity ethical. Rather, the general rules pertaining to attorney conduct must be applied in determining whether such practice is ethical.

Nearly twenty years ago, the Ethics Committee of the American Bar Association ruled that "no lawyer should record any conversation whether by tape or other electronic device without the consent or prior knowledge of all parties to the conversation." ABA Comm. on Ethics and Professional Responsibility, Formal Op. 337 (1974). The ABA opinion was extremely broad, prohibiting undisclosed recording of any conversation with any party, even though such activity is not unlawful under federal or state law.1 The Committee based its opinion on Canon 9 of the Code of Professional Responsibility, entitled "A Lawyer Should Avoid Even the Appearance of Professional Impropriety." In addition, the Committee cited DR 1-102(A)(4) of the Code of Professional Responsibility, which states that "A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."

We believe Formal Opinion 337 is overly broad and that it is not per se deceptive. Therefore, it is not unethical for an attorney to record conversations with persons from whom the attorney has not obtained consent. Attorneys document conversations routinely. Recordation is merely a technological convenience, providing a more accurate means of documenting rather than relying on one's memory, notes, shorthand, transcription, etc. for recall.

Morever [sic], the Rules lend support for the proposition that legal recording without consent is permissible. Under Rule 4.4, entitled "Respect for Rights of Third Persons," "a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person." To the extent that there was no similar rule under the old Code of Professional Responsibility and that this rule is inconsistent with ABA Opinion 337, Rule 4.4 should overrule the ABA statement. C. Wolfram, Modern Legal Ethics, § 12.4.4 (1986); Adams, "Tape Recording Telephone Conversations - Is It Ethical for Attorneys?," 15 J. Legal Prof. 171 (1990).

Whether recording without the knowledge or consent of the other party is deceptive and unethical is situation specific. While in most situations, recording will be permissible, some situations will dictate a different result. For example, if a lawyer by words or conduct entices someone into believing a conversation is confidential and for his or her ears only, yet the lawyer records the conversation and disseminates a transcription to others, then the lawyer has engaged in a deceptive practice. Moreover, a lawyer is bound to be truthful. Rule 8.4(c). Thus, if inquiry is made regarding tape recording, then the lawyer must be candid and truthful.

1 The ABA opinion did recognize one exception to the general prohibition applying under "extraordinary circumstances" for attorneys associated with law enforcement efforts.