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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 prospective clients.
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.
States' Views on Ethics of Sneaky Recording
Ohio Supreme Court Ethics Op. 2012-1 provides this tally of other states' views on whether secret recording by lawyers is ethical:
• Thirteen jurisdictions are of the view that surreptitious recording by lawyers is not per se misconduct.
• In 10 states, surreptitious recording is both illegal and unethical for lawyers.
• In nine states, surreptitious recording by lawyers is unethical but allowed in certain circumstances.
• Four states evaluate surreptitious recording on a case-by-case basis.
• Thirteen 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 accurate.
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:
• The 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 (2001).
• The 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).
• When lawyers have been disciplined in other states for surreptitious recording, the misconduct involved additional facts such as lying about the recording.
• “[P]ublic 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 fraud.
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.
Copyright 2012, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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