St. Mary's Law Journal


Carol M. Bast


Ethical rules generally set forth commonly held ethics principles in broad terms which usually generate little debate. What has generated a great deal of debate is whether it is ethical for an attorney to record a conversation. The American Bar Association’s (ABA) view of the issue has shifted over the years. Originally, the practice was held to be unethical except for certain well-defined exceptions involving government attorneys. The 2001 ABA opinion officially withdrew the original opinion allowing attorneys to secretly record a conversation with a non-client where it is not illegal. States’ opinions as to whether conversation recording is ethical have not been uniform and have spawned a great deal of discussion. While some states (which prohibit attorney recording as unethical) may allow attorneys to advise a client on whether recording is illegal, other states prohibit this type of advising. This is because such advice would allow the attorney to do something the attorney is not otherwise permitted to do. A complete ban on secret attorney recording is overbroad because there are many reasons for recording a conversation. States have recognized criminal defense attorneys should be allowed to secretly record conversations. There are strong public policy arguments supporting an attorney’s ability to secretly record conversations in certain situations. These arguments include being able to make a secret record in order to gather evidence of a crime or tortious activity, such as employment discrimination, sexual harassment, or trademark infringement. Yet, many potentially unethical actions related to secret attorney recording can be dealt with by other ethics rules. Permitting an attorney to secretly record conversations does not mean an attorney necessarily should secretly record on a routine basis. To promote the purpose of the ethics rules, attorneys need clear guidelines on whether or not it is ethical to secretly record conversations.


St. Mary's University School of Law