Ohio Supreme Court Bd. of Commissioners on Grievances & Discipline, Op. 2012-1, 6/8/12
Key Guidance: A lawyer's secret but legal recording of a conversation
is not inherently unethical.
Caveats: Lawyers may not lie or be deceitful in making secret
recordings, and should not surreptitiously record conversations with clients or
By Joan C. Rogers
The Ohio Supreme Court's ethics board June 8 discarded its longtime position
that a lawyer may not ethically record a conversation without the consent of all
parties. Its new advice is that it is not inherently improper for a lawyer to
record a conversation secretly but lawfully (Ohio Supreme Court Bd. of
Commissioners on Grievances and Discipline, Op. 2012-1, 6/8/12).
The board grounded its new approach on the ABA's change of heart on this
issue in 2001, case law from Ohio and other states, and a diminished expectation
of privacy given advances in technology.
Nonetheless the board made clear that when covertly recording a conversation
a lawyer must steer clear of deceptive practices such as falsely denying the
recording. Moreover, lawyers generally should not make secret recordings of
conversations with clients and prospective clients, the board advised.
Ohio Supreme Court Ethics Op. 97-3 (1997) took the position that under the
then-prevailing Ohio Code of Professional Responsibility, a lawyer's secret
recording of conversations--with witnesses, adversaries, opposing counsel,
clients, or others--presumptively violates the disciplinary rule against conduct
involving dishonesty, fraud, deceit, or misrepresentation.
Ohio Supreme Court Ethics Op. 2012-1 provides
this tally of other states' views on whether secret recording by lawyers is
jurisdictions are of the view that surreptitious recording by lawyers is not per
10 states, surreptitious recording is both illegal and unethical for
nine states, surreptitious recording by lawyers is unethical but allowed in
states evaluate surreptitious recording on a case-by-case basis.
states have not expressed an opinion on the issue.
The board drew this information from Bast, Surreptitious Recording by
Attorneys: Is It Ethical?, 39 St. Mary's L.J. 661 (2008), but said its
independent research revealed that the totals remain
The opinion recognized exceptions for extraordinary circumstances,
prosecutors and law enforcement attorneys, and criminal defense lawyers.
Revisiting the issue, the board identified several intervening changes
justifying a different view under the Ohio Rules of Professional Conduct, which
took effect in 2007:
ABA ethics committee reversed its own Watergate-era position on the issue and
concluded that a lawyer does not violate the Model Rules by engaging in the
secret but lawful recording of conversations. ABA Formal Ethics Op. 01-422
Ohio Supreme Court dismissed dishonesty charges against a lawyer who
surreptitiously recorded an interview in Ohio State Bar Ass'n v. Stern,
817 N.E.2d 14, 20 Law. Man. Prof. Conduct 572 (Ohio 2004).
lawyers have been disciplined in other states for surreptitious recording, the
misconduct involved additional facts such as lying about the recording.
expectations of privacy have changed given advances in technology and the
increased availability of recording equipment.”
The board pointed out that under Ohio law, as well as federal law and the law
of a majority of states, recording of conversations is legal if one party
consents. In addition, 26 states permit surreptitious recording by lawyers in at
least some situations, it found. (See box.)
Based on this review, the board concluded that “the general rule should be
that legal surreptitious recording by Ohio lawyers is not a per se violation of
Prof. Cond. R. 8.4(c).”
Although the board withdrew Op. 97-3, it emphasized that some specific acts
associated with surreptitious recording may violate Rule 8.4(c) or other rules.
As examples, it mentioned lying about the recording, using deceitful tactics to
become a party to a conversation, and using the recording to commit a crime or
The board said its advice was based on the assumption that a lawyer's
surreptitious recording does not violate the law of the jurisdiction where the
recording takes place. Before capturing a conversation in another state, it
said, an Ohio lawyer should verify that one-party recording is legal there.
If secret recording is illegal, the board noted, the recording may violate
Rule 4.4 (obtaining evidence in violation of a person's rights), Rule 8.4(b)
(illegal act reflecting adversely on honesty or trustworthiness), Rule 8.4(c)
(dishonesty, fraud, deceit, or misrepresentation), or Rule 8.4(h) (conduct
adversely reflecting on fitness to practice).
The board also advised that lawyers typically should not record conversations
with clients and prospective clients without their consent. The act of secretly
recording a conversation is usually inconsistent with a lawyer's obligations of
loyalty and confidentiality, it explained.
Full text at http://op.bna.com/mopc.nsf/r?Open=jros-8va25d.
The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.
Copyright 2012, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.