Is It Ethical to Tape a Client?
The Bencher—November/December 2018
By Joseph P. Briggett, Esquire
Lawyers taping conversations with their clients received national attention recently after Michael Cohen, the erstwhile personal attorney for President Trump, reportedly recorded at least one of his conversations with his client. The president tweeted in response, “What kind of a lawyer would tape a client? So sad!” Setting aside the controversies of the story, it highlights the fact that undisclosed recording of client conversations could result in a client who feels betrayed.
Some attorneys and law firms regularly record telephone discussions with clients, opposing counsel, and other third parties. There is certainly support for the notion that such a policy is both legal and ethical. Most states, as well as federal law, permit one-party-consent recording. Some states’ ethics authorities have concluded that the practice is permissible specifically for lawyers, within certain parameters. But determining when it is legal—and when it is ethical—for an attorney to record a phone conversation is a difficult question that probably needs to be evaluated on a call-by-call basis.
In so-called “two-party” states, the question is simple because it is illegal to record a conversation without the consent of the other party. Obviously, lawyers should never record a conversation without consent in these states. However, the question gets blurry for lawyers in one-party states, where it is legal to record telephone conversations as long as one of the parties to the conversation is the person doing the recording. But is this ethical?
People associate recording conversations with deceit, entrapment, and other unethical behavior. But there are legitimate reasons lawyers would want to record their conversations with a client, opposing counsel, or other parties involved in a case. Generally, maintaining such recordings can aid memory and assist in maintaining an accurate record. Having a recording could also protect the lawyer and his or her client from false accusations.
This is particularly true for litigators, who spend a great deal of their time communicating on the phone with opposing counsel about discovery, motions, and settlement. From time to time, lawyers may have differing recollections or interpretations about what was said in a telephone discussion—or even whether a phone conversation occurred at all. For those reasons, it may be useful to have a record of the conversations.
Recording is even easier with the advent of internet telephone technologies. Using these systems, lawyers can implement “ad hoc” recording on an internet-integrated telephone system, which allows the user to push a button and record the conversation on the fly whenever necessary. These systems can also be configured to automatically record every conversation from the user’s telephone station. The recordings of the calls are then saved in an integrated document management system along with metadata, such as the originating number and call duration. Transcriptions of each call can also be automatically generated and saved in a searchable system.
The technology for recording has improved, but definitive guidance from state authorities on the ethics of recording has been somewhat rare. In Texas, the Professional Ethics Committee for the State Bar Association determined that, with certain limitations, lawyers may record phone conversations with third parties, including clients, without first disclosing to the other party that the conversation is being recorded (Opinion No. 575, November 2006). The committee reversed its prior position in which it had opined that such recording was strictly prohibited. In fact, it was a double-reversal because in 1953 the committee had initially opined that the practice was permissible.
There are varying degrees of permissiveness among the states, but a dearth of guidance seems to prevail. The American Bar Association (ABA) has gone only so far as to say “a lawyer who electronically records a conversation without the knowledge of the other party or parties to the conversation does not necessarily violate the Model Rules.” In states such as Louisiana, there is no definitive guidance on this issue from the state bar association, attorney general or supreme court. More generally, Louisiana Attorney General Opinion no. 91-531 opined that the practice of recording phone calls is permissible without addressing the practice of doing so between lawyers or between a lawyer and his or her client. It remains an open question in Louisiana and many other states as to the circumstances in which a lawyer can record telephone calls.
In these states that lack definitive guidance, it would be advisable to proceed with some discretion. Even though a lawyer can easily record a telephone conversation, he or she may be reluctant to use that capability for a number of reasons. First, there is the question of whether to disclose that the call is being recorded. The lawyer might conclude that he or she has not affirmatively misrepresented any fact by exercising the right (in one-party states) to record a conversation without advising the other party to the conversation. But the recorded party might consider it dishonesty by omission. And the alternative—announcing the fact that the conversation is being recorded—has the potential to chill open and candid communication.
Would not telling someone a call is being recorded constitute an ethical violation? The most likely answer is no. Rule 4.1(a) of the ABA Model Rules of Professional Conduct, which prohibits “[making] a false statement of material fact or law to a third person.” Theoretically, one could argue that recording a call without disclosing that fact could amount to a false statement of fact or law in violation of that rule.
When read in conjunction with Rule 4.1(b), however, it is reasonable to infer that the rule does not impose a general duty on lawyers to disclose material facts. It simply prohibits making false statements. Rule 4.1(b) imposes an affirmative duty on a lawyer to disclose a material fact only “when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.” By reverse implication, there is no affirmative duty to disclose material facts in other circumstances. The comments to the rule bear out this interpretation. So this practice would probably not amount to a violation of Rule 4.1, unless a lawyer told someone he or she was not recording the conversation and then proceeded to record it anyway. Things could also get thorny if the party being unknowingly recorded made a statement that suggested he or she believed the conversation was off the record. In such an instance, the lawyer doing the recording might have an ethical duty to correct such a misapprehension.
For litigators, there are also strategic reasons to be reluctant to record such conversations, regardless of whether it is ethical and whether contemporaneous disclosure is required. If such a recording of the conversation were to become relevant evidence in relation to any pending action, it might have to be produced in discovery according to the applicable rules and orders of the court. Such a recording could be protected by the attorney-client privilege or work-product doctrine. But if the content of the conversation became discoverable and turned out to be damaging to the recording lawyer’s client, it might appear to be a foolish misstep in hindsight.
An important principle that applies to any recording maintained by an attorney in the course of representing a client is shown in Model Rule 1.6 regarding confidentiality of information. A lawyer generally cannot reveal taped conversations with a client without the client’s consent. The lawyer is prohibited from revealing any client information except in accordance with the exceptions set out in Rule 1.6. One of those exceptions is the crime or fraud exception. It allows a lawyer to disclose client confidences to prevent crime or fraud when the client has used the lawyer’s services in furtherance of a crime or fraud. Likewise, an attorney can reveal confidential client information to defend him or herself from accusations of wrongdoing if the lawyer has been accused of involvement in criminal activity with the client.
These rules address a tension in the attorney-client relationship. The relationship of confidence between a lawyer and client is a critical component of the legal process. But in these extreme situations, a lawyer is authorized to reveal confidential communications to protect him or herself or others. Having an audio recording may give the lawyer a more reliable defense in these situations. But by the same token, publicity regarding the unauthorized release of taped conversations between attorney and client, even when the release is justified, has the potential to erode public trust in the confidentiality of the attorney-client relationship.
The Texas Committee on Professional Ethics provides an instructive list of ethical parameters that a lawyer should consider when recording phone conversations. Recordings are generally permissible as long as (1) recordings of conversations involving a client are made to further a legitimate purpose of the lawyer or the client, (2) confidential client information contained in any recording is appropriately protected by the lawyer in accordance with Rule 1.05, (3) the undisclosed recording does not constitute a serious criminal violation under the laws of any jurisdiction applicable to the telephone conversation recorded, and (4) the recording is not contrary to a representation made by the lawyer to any person.
One thing to keep in mind with regard to parameter three is that many court-organized conference call services for telephonic court appearances, such as CourtCall, specifically prohibit recording the subject court proceedings. Furthermore, that parameter references “any jurisdiction applicable to the telephone conversation,” which signals that attorneys should tread very carefully when recording a telephone conversation with participants from other states or countries.
In states where there is an absence of definitive guidance on this issue, attorneys must use their professional judgment as to whether they may record telephone calls with clients, opposing counsel, and third parties, and further, whether they must advise the other party that the call is being recorded. While internet telephone technologies offer the convenient ability to automatically record and store every phone conversation that goes through a lawyer’s phone, a blanket policy would be imprudent. Some degree of discretion is required to determine whether each particular call may be recorded. By the same token, attorneys and clients alike should be mindful that any time they pick up the phone, their words may be recorded.
Joseph P. Briggett, Esquire, is a shareholder at Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, in New Orleans, Louisiana, practicing in the firm’s Bankruptcy, Restructuring and Creditor’s Rights and Commercial Litigation practice groups. He serves on the board of directors and is the secretary of the Tulane Law School American Inn of Court.