Citation[]
Charles Doyle, Wiretapping, Tape Recorders, and Legal Ethics: An Abridged Overview of Questions Posed by Attorney Involvement in Secretly Recording Conversation (CRS Report R42649) (Aug. 9, 2012) (full-text).
Overview[]
In some jurisdictions, it is unethical for an attorney to secretly record a conversation even though it is not illegal to do so. A few states require the consent of all parties to a conversation before it may be recorded. Recording without mutual consent is both illegal and unethical in those jurisdictions. Elsewhere the issue is more complicated.
In 1974, the American Bar Association (ABA) opined that surreptitiously recording a conversation without the knowledge or consent of all of the participants violated the ethical prohibition against engaging in conduct involving "dishonesty, fraud, deceit or misrepresentation." The ABA conceded, however, that law enforcement recording, conducted under judicial supervision, might breach no ethical standard. Reaction among the authorities responsible for regulation of the practice of law in the various states was mixed. In 2001, the ABA reversed its earlier opinion and announced that it no longer considered one-party consent recording per se unethical when it is otherwise lawful.
Today, this is the view of a majority of the jurisdictions on record. A substantial number, however, disagree. An even greater number have yet to announce an opinion. This report analyzes these issues. It is an update of an earlier report — Wiretapping, Tape Recorders & Legal Ethics: Questions Posed by Attorney Involvement in Secretly Recorded Conversation.