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Opinion #168. Secretly Taping Telephone Calls
Issued by the Professional Ethics Commission
Date Issued: March 9, 1999
Facts and Questions
Bar Counsel poses the following question pursuant to Bar Rule 11(c)(1).
Attorney A makes a regular practice of taping all her telephone calls, whether with the client, opposing counsel, another lawyer other than opposing counsel or the court. The attorney does not tell the other person(s) on the phone call that the conversation is being recorded. State and federal law permit the recording of the phone call as long as Attorney A is a participant. Bar Counsel inquires as to whether the practice is prohibited by the Bar Rules, and further inquires as to whether it matters who the other party is to the conversation.
Opinion
The Maine Bar Rules do not directly speak to the practice. However, Bar Rule 3.2(f) provides that "A lawyer shall not: ... (3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation,? which, in our view, is the rule most directly applicable to the facts posed.[1] The specific question then is whether such recording may be characterized as dishonest, fraudulent, deceitful or involving a misrepresentation. Since these terms are not defined in the Bar Rules, we must look to other sources to divine their meaning.
Among the factors to be considered are the applicable provisions of state or federal law or regulations that apply to such recording. As Bar Counsel correctly notes, recording a phone call is permitted both by Maine and federal law so long as the person doing the recording is a party to the conversation. 15 M.R.S.A. § 709 and 18 U.S.C. § 2511. However, under federal law, such recording, even by a participant, is prohibited if it is "for the purpose of committing any criminal or tortious act." 18 U.S.C. § 2511. [2]
The ABA Committee on Ethics and Professional Responsibility and a number of state ethics or professional responsibility commissions have had occasion to address this issue. Although the applicable ethics rules vary among jurisdictions, in general the rules in all jurisdictions include a prohibition the same as or similar to Bar Rule 3.2(f)(3). The ABA Committee and a majority of state ethics bodies have concluded that such recording does violate that provision. American Bar Association, Committee on Ethics and Professional Responsibility, Formal Opinion 337 (1974); Alabama State Bar Disciplinary Commission, Opinion 84-28 (1974); Alaska Bar Association Ethics Committee, Opinion 83-2 (1983); Alaska Bar Association Ethics Committee, Opinion 91-4 (1991); Dallas Bar Association Legal Ethics Committee, Opinion 1981-5 (1981); District of Columbia Bar Legal Ethics Committee, Opinion 178 (1987); Hawaii Supreme Court Disciplinary Board, Opinion 30 (1988); Idaho State Bar Ethics Committee, Formal Opinion 130 (1991); Minnesota Lawyer Professional Responsibility Board, Informal Opinion 3 (1986); Minnesota Lawyer Professional Responsibility Board, Opinion 18 (1996); Association of the Bar of the City of New York Committee on Professional and Judicial Ethics, Formal Opinion 1995-10 (1995); New York State Bar Association Committee on Professional Ethics, Opinion 328 (1974); South Carolina Ethics Advisory Committee, Opinion 83-01 (1983); Board of Professional Responsibility of the Supreme Court of Tennessee, Formal Opinion 81-F-14 (1981); Board of Professional Responsibility of the Supreme Court of Tennessee, Formal Opinion 86-F-14(a)(1986); and Supreme Court of Texas Professional Ethics Committee, Opinion 392 (1978).
A number of state courts have joined in this view. People v. Selby, 606 P.2d 45, (Colo.1979); People v. Wallin, 621 P.2d 330 (Colo.1981); People v. Smith, 778 P.2d 685 (Colo. 1989); State Bar Association v. Mollman, 488 N.W.2d 168 (Iowa 1992); In the Matter of An Anonymous Member of the South Carolina Bar, 322 S.E.2d 667 (S.C. 1984); In the Matter of An Anonymous Member of the South Carolina Bar, 404 S.E.2d 513 (S.C. 1991); Kaplan v Wyatt, 1984 WL 9274 (Del.Ch. 1984); National Life and Accident Insurance Co. v. Miller, 484 So.2d 329 (Miss. 1985); Gunter v. Virginia State Bar, 385 S.E.2d 597 (Va.1989) and In the Petition of Sharon Ann Zieigler, 637A.2d829 (Del.1994).
In contrast to these opinions and cases, a few jurisdictions have held that secretly recording conversations does not violate any ethical rule. New York County Lawyers? Association Committee on Professional Ethics, Opinion 696 (undated); Oklahoma Bar Association Legal Ethics Committee Opinion 307 (1994); Utah State Bar Ethics Advisory Opinion Committee, Opinion 96004 (1996); The Mississippi Bar v. Attorney ST., 621 So.2d 229 (Miss. 1993); Attorney M- v. Mississippi Bar, 621 So.2d 220 (Miss.1992); and Netterville v.Mississippi State Bar, 397 So.2d 878 (Miss. 1981).
Having carefully reviewed all these precedents and the text of the Maine Bar Rule, we have concluded that the majority view is not persuasive. Those decisions that find that the practice is unethical share a common characteristic. Without exception, the opinions are highly conclusory, contain little if any analysis of any kind and fail to rely on provisions in the applicable ethical rules of the jurisdiction. ABA Op. 337, which has been adopted whole cloth by many state ethics panels, simply concludes, without analysis of the text of ABA rules, that undisclosed recordings "involve dishonesty, fraud, deceit or misrepresentation." Some of the opinions such as Minnesota Op. 18 conclude that undisclosed recordings are "inherently deceitful" without explanation as to the basis for such a conclusion. Such lack of analysis is the equivalent of stating that "recording is deceitful under the rules because it is deceitful." Other decisions such as in South Carolina Op. 83-01 base their conclusion on a finding that such recordings would "violate an attorney's duty to avoid the appearance of impropriety" without discussion as to what impropriety was implicated. Tennessee Op. 86-F-14(a) disapproves of recording conversations with other lawyers, but approves of secretly recording witnesses in criminal cases. The distinction is apparently based on the unstated grounds that it is a justifiable technique to gather evidence to impeach a witness and therefore in those circumstances not dishonest, deceitful or fraudulent. The Colorado Supreme Court has disapproved of such recording because it is claimed to discourage "candor" among attorneys and judges and because it "suggests deceit and trickery" even if no affirmative misrepresentation is made by the recording lawyer. People v. Selby, 606 P.2d at 47. The Delaware Chancery Court disapproved of the conduct because it interferes with "the right to free expression and confidentiality between counsel." Similarly, Idaho Op.130 concludes that recording conversations will ?not encourage the system's judicial objectives" and will cause people to be more "cautious" and to be "less candid" in their conversations. Suffice it to say that the dearth of rule-based analysis in all these opinions is neither helpful nor persuasive.
In our view the opinions that strike closest to the real rationale for the ethical objection to the practice are found in the opinions of the N.Y. State Bar and the Texas State Bar. In Texas Op. 392 the Texas Supreme Court Professional Ethics Committee concluded that "secret recordings of conversations offends the sense of honor and fair play of most people." In a more expansive statement of that same view the New York State Bar Association Committee on Professional Ethics stated:
There is general aversion to the secret electronic recordation of private conversations. Unrecorded private conversation encourages uninhibited and easy flow of expression and facilitates the exchange of ideas even though in unguarded and imprecise language which might not have been employed if the speaker had had knowledge that a literal transcript was being made. Elemental fairness ordinarily dictates that all participants be aware of the ground rules governing a conversation. They may then conduct themselves accordingly.
A lawyer should be candid and fair. Of equal importance, he should be regarded as such by other lawyers and the public and his conduct should not be susceptible to an interpretation that he is less than candid and fair. EC 9-6 states that "every lawyer owes a solemn duty to strive to avoid only professional impropriety but also the appearance of impropriety."
N.Y. State Bar Op. 328. While we wholeheartedly agree with the sentiment expressed in both these opinions, we are unable to find any support for it in the text of the Maine Bar Rules.
As noted at the outset, Bar Rule 3.2(f)(3) specifically addresses conduct that involves "dishonesty, fraud, deceit or misrepresentation." The common meaning of those words encompasses conduct that involves characteristics such as untruthfulness, theft or affirmative misrepresentation. We do not believe that the language of the rule can be read so broadly as to proscribe conduct simply because we are of the view that it is "unfair" or "not nice," or is "dishonorable." Such a broad reading of the rule could conceivably sweep in an array of conduct that was thought to be distasteful or unfair, even if not fraudulent or dishonest. In our view we are not authorized to apply this rule so as to prohibit conduct that we did not like or which we think might, in the words of the New York committee, "inhibit" the "easy flow of communication." We do not have a charter authorizing us to declare conduct to be unethical simply because we believe that it "offends our sense of honor and fair play" or because it will inhibit communication. Nor do we believe that the failure of the recording attorney to include a beep tone as required by the telephone carrier's tariff would result in a violation of the Bar Rules. We conclude, therefore, that, however much we would like to do so, we cannot find that electronically recording a conversation without the knowledge of the other participant(s) is per se prohibited by the text of the rule.
Having so concluded, we also note that such conduct must be undertaken with care. As stated in Oklahoma Op. 307:
Whether recording without the knowledge or consent of the other party is deceptive or unethical is situation specific. While in most situations, recording will be permissible, some situations will dictate a different result. For example, if a lawyer by words or conduct entices someone into believing a conversation is confidential and for his or her ears only, yet the lawyer records the conversation and disseminates a transcription to others, then the lawyer has engaged in a deceptive practice. Moreover, a lawyer is bound to be truthful. [citation omitted] Thus, if inquiry is made regarding the tape recording, then the lawyer must be candid and truthful.
The same observations would also apply with respect to subsequent use of the recording. That is, the recording must be used in a fashion consistent with Rule 3.2(f)(3). It is obviously not possible to delineate all the circumstances that might cause such usage to be in violation of the rule, since that would be a "situation specific" determination. However, the fact that the act of recording is not per se unethical still requires that the recording attorney?s conduct must otherwise not be dishonest, fraudulent, deceitful or involve misrepresentation.
Footnotes
[1]Bar Rule 3.2(f)(2) prohibits a lawyer from engaging in "illegal" conduct that "adversely reflects on the lawyer's honesty, trustworthiness or fitness." Since this question does not involve illegal conduct, we view that rule as not applicable.
[2]Telephone directories in Maine typically include a statement in the instructional portion of the directory informing users that use of a recording device without a beep tone every 15 seconds "is prohibited." The directory does not state the consequences for violation. The directory statement apparently arises out of the tariff filed by the local telephone company with the Maine P.U.C. which tariff provides that phone subscribers must provide for a "beep tone" device when recording a call to alert other participants to the fact of the recording. Such tariffs also provide that failure to use such device may result in termination of phone service. We do not know the extent to which telephone carriers in Maine actually enforce this condition, nor is it clear whether phone users are even aware of this condition and the possible consequences for violation. In any event, violation of the telephone company's tariff (i.e. its operating rules) by the user does not appear to be a violation of law, but at most a breach of the contractual terms on which the telephone service is provided.
