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Is It Ethical for Attorneys to Record Telephone Conversations?

By Alberto Bernabe on Thursday, September 19th, 2019

Last year, it was widely reported that Michael Cohen, President Donald Trump’s former personal attorney, recorded telephone conversations with some of his clients without their knowledge. In response to the news that he was among those clients, Trump tweeted, among other things, “…inconceivable that a lawyer would tape a client – totally unheard of & perhaps illegal.”[1] Not surprisingly, as is often the case, Trump was talking about something with which he is not familiar; and he was wrong. It is definitely not unheard of for a lawyer to record conversations, and, given the law in a majority of the states, it is probably not illegal either. Yet, it is worth asking whether his reaction was justified for other reasons because asking whether it is unheard of, or whether it is illegal, does not address two more interesting questions: whether it is unethical and, even if it is, whether it is a good idea.

Is it legal?

Is it legal for attorneys to record telephone conversations with their clients without their consent? The quick answer is “it depends,” but that does not mean that the answer is complicated or confusing. It only means it depends on the law that applies in the jurisdiction where the lawyer is practicing law. In other words, the law varies from state to state, but once the lawyer knows what the law of the state is, the answer should be pretty straightforward.

Essentially, there are two different approaches to whether it is legal for a lawyer to record a telephone conversation without the knowledge or consent of others. In some states, it is illegal for a person to record a conversation unless all the parties to the conversation have given consent to the recording. In a majority of states, on the other hand, the conversation can be recorded as long as any one person participating in the conversation consents, and that person can be the one making the recording. Thus, in these so-called “one-party consent” states, an attorney can legally record a conversation without the consent of the other parties as long as the attorney is participating in the conversation.

At least thirty-eight states and the District of Columbia are “one-party consent” jurisdictions. In contrast, only eleven states require the consent of everybody involved in a phone call before the conversation can be recorded. One state (Vermont) does not seem to have adopted a position on the issue.[2]

Evidently, if an attorney surreptitiously records a conversation in a state whose laws require consent from all the parties involved, the attorney would be violating the law. Yet, in a majority of states, because only one party to the conversation needs to provide consent, attorneys would not violate the law by recording telephone conversations with their clients as long as the attorney participates in the conversation.

Having said that, however, it must be noted that the fact that the conduct is legal does not necessarily mean that it is ethical. And, as is widely known, because Attorneys are bound by a very specific code of conduct, violations of the rules of ethics can result in disciplinary sanctions including disbarment.

Is it ethical?

Is it ethical for attorneys to record telephone conversations without the consent of those involved? As a general proposition, whether it is ethical to record a telephone conversation with a client is not as straightforward as whether it is illegal. The rules that regulate attorneys’ professional conduct typically do not address the practice of recording conversations specifically, but they do regulate conduct that can be considered to be illegal or dishonest. Based on these distinctions, if recording a conversation is illegal, it will also likely be considered unethical.[3] However, even if it is legal, the conduct may be unethical if it is considered “conduct involving dishonesty, fraud, deceit or misrepresentation.”[4]

Interestingly, however, the view of the ABA Standing Committee on Ethics and Professional Responsibility, the entity that issues Formal Ethics Opinions interpreting the Model Rules of Professional Conduct, has changed over time.

The first time the Committee considered the question of surreptitious recordings by lawyers, in 1974, it concluded in a formal opinion that “no lawyer should record any conversation, whether by tapes or other electronic device, without the consent or prior knowledge of all parties to the conversation.”[5] The conclusions of this opinion were reaffirmed a year later in an informal opinion, but the Committee conceded that there should be an exception to the analysis.[6] According to the new opinion, it would not be unethical for the U.S. attorney general or state or local prosecutors to surreptitiously record conversations if it was done “within strict statutory limitations conforming to constitutional requirements” for the purpose of gathering evidence to investigate or prosecute criminal activities.[7] Finally, the Committee added that a lawyer in private practice could not ethically direct an investigator, and, presumably, by extension any other legal professional, to record a conversation without consent of all the people involved in the conversation.[8]

The next time the Committee addressed the issue, in 2001, however, it formally withdrew the original opinion and reached a new, and less strict, conclusion.[9] In this more recent opinion, the Committee first pointed out two obvious points: that in those states that prohibit recordings without the consent of all parties, a lawyer could be subject to ethical sanctions for secretly recording a conversation,[10] and that in those cases in which it is legal for a lawyer to record a conversation, the lawyer may not state falsely that the conversation is not being recorded.[11]

Second, the Committee concluded that it would not be unethical for a lawyer to record a conversation with non-clients under circumstances in which it would be lawful to do so. However, because some members of the Committee thought that there is a significant difference between the relationship of a lawyer with a non-client and the relationship with a client, the Committee members were unable to agree on whether a lawyer may ethically record a conversation with a client without the client’s knowledge in a jurisdiction in which it would not be illegal to do so.

While it did not offer an opinion on that specific question, the Committee pointed out that its members did agree that even if recording a client conversation was not unethical, it would not be a good idea to do so. Thus, the Committee concluded that, even if the rules of ethics do not require that a lawyer obtain a client’s consent to record a conversation, 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.”[12]

In other words, the Committee suggested a distinction between an ethical duty and something else – something that maybe we can call “best practices.” Based on that distinction, the opinion seems to conclude that in a jurisdiction in which it is legal to do so, even though it might be ethical to record a telephone conversation with a client without the client’s consent, “best practices” suggest that the lawyer should not do it.

The Committee based this conclusion on the understanding that “[t]he relationship of trust and confidence that clients need to have with their lawyers, and that is contemplated by the Model Rules, likely would be undermined by a client’s discovery that, without his knowledge, confidential communications with his lawyers have been recorded by the lawyer. Thus, whether or not undisclosed recording of a client conversation is unethical, it is inadvisable except in circumstances where the lawyer has no reason to believe the client might object or where exceptional circumstances exist,”[13] such as when the client has forfeited the right of loyalty or confidentiality.

Given this murkiness, it seems like at this moment, the most accurate answer we can give to the question of whether it is ethical to record a conversation without consent under the Model Rules is that, according to the analysis of the ABA Committee on Ethics and Professional Responsibility, if it is legal, it is not unethical, but it is not a good idea, unless there are no duties owed to the client and there is a justifiable reason for it.

At the state level, the answer may be different. Some states have adopted the conclusions of the ABA Committee’s 2001 opinion, but others adopted the views expressed in 1974 and have not revised their position, even though the Committee abandoned those views in 2001.[14] For example, the Supreme Court of South Carolina, which is a “one party” state, has held that even though it is not illegal for a person to record a conversation without everyone’s consent, nonconsensual recording of conversations by an attorney is inherently deceitful, and therefore, unethical.[15] Similarly, advisory opinions in at least eight states have held, or implied, that even if legal, it is unethical to record conversations without consent, subject to exceptions. In Colorado, for example, the Colorado Bar Ethics Committee has stated that although recording a conversation without consent is generally improper, it is allowed in a criminal case for the purpose of gathering admissible evidence.[16] On the other hand, advisory opinions in at least eighteen states have concluded, or implied, that legally recording conversations without consent is not unethical.[17]

In conclusion, whether it is illegal for an attorney to record a conversation depends on whether the law in the jurisdiction requires that all parties to the conversation consent to the recording. If that’s the case, and not all the parties to the conversation consent, then recording the conversation surreptitiously would be both illegal and unethical.

On the other hand, whether it is unethical to record a conversation in a state that does not require all parties to the conversation to consent to the recording is not as clear. Evidently, an argument can be made, and some state advisory opinions have held, that the conduct should be considered to be inherently unethical, but that is not the view of the ABA Standing Committee on Professional Responsibility nor is it the law in many states.

Is it advisable?

As mentioned above, regardless of whether it is ethical to record a conversation without consent, the ABA Committee on Ethics and Professional Responsibility has stated that it is inadvisable. Even though it can be argued that creating a record of conversations with witnesses and clients is a good idea in order to preserve evidence and recollections, to prevent future inconsistencies in testimony, and to increase reliability in a witness’ testimony, it is debatable whether any of these goals requires that the conversation be recorded without consent.

Thus, on the one hand, secretly recording conversations may be a good thing if it helps preserve more information to resolve factual issues, if it helps make a witness’ testimony more reliable or helps an attorney create a record that can later be used to corroborate or impeach someone’s testimony. But, on the other hand, as suggested by the ABA Committee on Ethics and Professional Conduct, it is not unreasonable to argue that a client would react negatively to learning that his or her lawyer secretly taped conversations with the client, and that this would undermine trust and confidence in the lawyer.

For this reason, it is always a good idea to remember that the fact that you are allowed to do something does not necessarily mean you should always do it.

 

 

 

 

 

 

 

 

[1] Donald Trump, (@realDonaldTrump), TWITTER (July 21, 2018, 7:10 am), https://t.ly/50Eqd.

[2] For a summary of the state of the law see, Matthiesen, Wickert & Lehrer, S.C., LAWS ON RECORDING CONVERSATIONS IN ALL FIFTY STATES, available at: https://tinyurl.com/y369ul8o.

[3] See Model Rule 8.4 of the ABA Model Rules of Professional Conduct, which has been adopted, with or without modifications, in all jurisdictions. Specifically, Model Rule 8.4(b) states that it is misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. MODEL RULE 8.4 OF THE ABA MODEL RULES OF PROFESSIONAL CONDUCT, R. 8.4(b). The text of the Model Rules is available at https://tinyurl.com/y3vx9plw.

[4] See MODEL RULE 8.4 OF THE ABA MODEL RULES OF PROFESSIONAL CONDUCT, R. 8.4(c).

[5]ABA COMM. ON ETHICS AND PROF’L RESPONSIBILITY, Formal Op. 337 (1974).

[6] ABA COMM. ON ETHICS AND PROF’L RESPONSIBILITY, Informal Op. 1320 (1975).

[7] Id.

[8] Id.

[9] See, ABA COMM. ON ETHICS AND PROF’L RESPONSIBILITY, Formal Op. 01-422 (2001).

[10] This conduct would most likely be considered unethical under rules such as Model Rule 8.4(b), which defines misconduct as conduct that constitutes “a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer.” ABA MODEL RULES OF PROFESSIONAL CONDUCT, R. 8.4(b).

[11] This conduct would most likely be considered unethical under rules such as Model Rule 8.4(c), which defines misconduct as conduct that constitutes “conduct involving dishonesty, fraud, deceit or misrepresentation.” ABA MODEL RULES OF PROFESSIONAL CONDUCT, R.8.4(c). It could also be considered to be a violation of a rule like Model Rule 4.1 which subjects a lawyer to discipline for making false statements of material fact to others. ABA MODEL RULES OF PROFESSIONAL CONDUCT, R.4.1.

[12] Formal Op. 01-422, supra note 9, at 6.

[13] Id., at 7.

[14] From 1978 through 1995, some jurisdictions adopted the analysis used in the ABA Formal Opinion of 1974, including Alabama, Alaska, Colorado, Hawaii, Iowa, Missouri, and Virginia. Peter Joy, Special Counsel Investigations and Legal Ethics: The Role of Secret Taping, 57 DUQUESNE LAW REVIEW 252, 262 and 265-67 (2019). Some jurisdictions adopted the basic ABA approach to secret recordings, but expanded the list of exceptions. Id., citing ethics opinions from Arizona, Idaho, Kansas, Kentucky, Minnesota, Ohio, South Carolina, and Tennessee. For a good discussion of the different approaches see, Carol Bast, Surreptitious Recording by Attorneys: Is it Ethical?, 39 ST. MARY’S LAW JOURNAL 661 (2008).

[15] In re Anonymous Member of the South Carolina Bar, 322 S.E.2d 667 (1984); In re Warner, 335 S.E.2d 90 (1985); and In re Anonymous Member of the South Carolina Bar, 404 S.E.2d 513 (1991). See also, South Carolina Bar Ethics Advisory Commission, Formal Op. 08-13 (2013).

[16] Colorado Bar Ass’n. Ethics Committee Formal Op. 112 (2003).

[17] Ethics authorities in the District of Columbia, Mississippi, New Mexico, North Carolina, Oklahoma, Oregon, Utah, and Wisconsin have rejected the ABA approach and held that whether secret recording violated any ethical rules had to be decided on a case-by-case basis. Joy, supra note 14 at 263.

 

About the Author and Article: Alberto Bernabe is a Professor of Law at The University of Illinois at Chicago John Marshall Law School. This article is an expanded version of an article that will be published later this fall in @Law, The Magazine of the Association of Legal Professionals.

 

Injured Spectator vs The Chicago Cubs; Will This Be the Case That Establishes a New Rule?

By Alberto Bernabe on Monday, October 16th, 2017

Readers of this blog probably saw the news that a baseball fan has sued the Chicago Cubs seeking compensation for the loss of sight in his left eye after he was hit in the eye during a Cubs game earlier this year.   The case has been filed as Loos v. Chicago Cubs Baseball Club.  Also, as readers of this blog probably know, the issue in the case will come down to whether the plaintiff can convince the court to hold that the Cubs had a duty to provide more protection to spectators than it already does.

Many in the media are claiming the case is “challenging” the “baseball rule,” but this can be misleading because it depends on what is meant by this so-called “rule.”

Let’s start at the beginning.  All personal injury claims are based on the notion that the defendant had a duty to do something and that his or her conduct violated that duty.  In the baseball game scenario, the argument is that the conduct of the baseball team (or whomever is in charge of the stadium) in not protecting the spectator from the risk of injury violated a duty to the spectator.

However, whether there is a duty in any case is a question of policy, which courts address by considering the relative importance of any number of competing policies or values.  In the baseball cases, for example, courts consider the level of risk involved, the ability of the spectators to protect themselves, the costs to the defendants to provide more protection and the negative effects on all spectators from having to deal with the added protections (ie, having to watch the game through nets).

Over time, many jurisdictions have adopted the position that defendants in such cases only have a limited duty to spectators.  And, again over time, it has come to be generally accepted that the duty is just to provide to provide warnings to all other spectators and netting to protect the spectators sitting in the most vulnerable positions (behind home plate and extending a certain distance along the first and third base lines).

In many of the cases that have addressed the issue, the question has also been discussed in the context of a defense of assumption of the risk, which, if successful, would result in a holding that the defendant will not be liable to a plaintiff if the plaintiff knowingly and voluntarily decided to expose himself or herself to a risk even if the risk could have been minimized or eliminated by the defendant.  Technically speaking, the issue is one of duty and not of a defense, but courts get the concepts confused all the time.

The so-called “baseball rule” that many in the media refer to is not really a “rule” per se, but a reference to the end result of the argument of the defendant (ie, that the defendant may escape liability), whether because the court finds the defendant did not owe a duty to the plaintiff or whether the court applies the doctrine of assumption of risk as a defense.

Yet, the media commentary is correct in suggesting that lawsuits like the one filed against the Cubs “challenge” the current state of the law.  In a jurisdiction where the so-called “baseball rule” has been adopted as part of the Common Law, spectator claims challenge not a rule per se, but the analysis that supports the argument that has resulted in allowing defendants to escape liability in the past.  In other words, these types of cases keep getting filed in an attempt to get the courts to change the analysis or to decide not to apply it given the circumstances.

It is quite acceptable and common for plaintiffs to ask courts to change established rules of law based on an allegation that “times have changed” and therefore that we should rethink how we approach a certain issue.   Plaintiffs may argue that the approach in baseball cases should be changed because, among other things, statistics show there are more injuries than in the past when the “baseball rule” was adopted, or that the cost of providing more protection to spectators is lower now, or that current fans are not as bothered by nets as they used to be or that there are more distractions during games which make it more difficult for fans to protect themselves, or simply that public attitude toward the issue has changed.  Also, the fact that the Major League Baseball Commissioner has suggested teams probably should provide more netting provides support for the plaintiff’s argument that the attitude toward the problem has changed.

In the end, like in all cases that ask a court to consider whether to recognize (or impose) a duty, the question usually comes down to a balancing of competing policies.  How do we balance the fact that spectators should be alert to the risks related to sitting so close to the field, the fact that the defendant charges what many consider to be an outrageous amount of money for those seats, the fact that people are willing to voluntarily pay that amount of money to sit close to the field, the fact that there is so little time to react to line drives (as opposed to pop-ups), the fact that there are so many distractions during the game, the fact that putting more netting will cost the defendants more money, which they probably will, in turn, try to recoup by charging the fans more for the tickets, the fact that some fans do not want netting because they say it interferes with the enjoyment of watching the game in person, and so on and so forth.

Obviously, the law is not static.  It changes over time to meet the needs of society.  Will “we” – all of us, baseball fans or not – be better off as a society if the law of torts is changed to strongly encourage baseball stadiums to provide more safety for the fans?  That is what courts have to consider when deciding cases brought by baseball spectators.

The case against the Cubs, however, is different in one important sense.  Here the “baseball rule” has been legislated.  In reaction to a similar lawsuit brought by a spectator at a White Sox game, the legislature enacted a specific statute limiting the possible liability of owners of baseball facilities.  It reads, in part:

The owner or operator of a baseball facility shall not be liable for any injury to the person or property of any person as a result of that person being hit by a ball or bat unless: (1) the person is situated behind a screen, backstop, or similar device at a baseball facility and the screen, backstop, or similar device is defective (in a manner other than in width or height) because of the negligence of the owner or operator of the baseball facility; or (2) the injury is caused by willful and wanton conduct, in connection with the game of baseball, of the owner or operator or any baseball player, coach or manager employed by the owner or operator.  (745 ILCS 38/10)

Thus, in Illinois, the issue is not just a matter of determining whether to recognize a duty as it would be in a jurisdiction where the so-called “baseball rule” was adopted by the Common Law.  Here, the plaintiff will have to argue that either the statute is invalid, or that the event that resulted in the injury falls within one of the exceptions.

Yet, it is possible the court will take the time to opine on whether the policy behind the statute is still justified.  Obviously, the court can’t repeal a statute, but maybe it will open the door for the eventual adoption of a new baseball rule.

Stay tuned.