Request has been made for reconsideration and
clarification of Formal Ethics Opinion 81-F-14
concerning recording of conversations by
criminal defense attorneys without the
knowledge of all parties to the conversation.
Formal Ethics Opinion 81-F-14 adopted ABA Formal Opinion 337 ruling
that secret recording of conversations by an attorney constitutes
conduct involving dishonesty, fraud, deceit or misrepresentation in
violation of Disciplinary Rule 1-102(A) of the Code of Professional
Ethics Opinion 81-F-14 and ABA 337 have been construed to exempt
prosecutors and to allow them to utilize secret recordings in
conducting criminal investigations where one party to the
conversation has consented. The practical effect of this
interpretation of the ethics opinions is the imposition of an
ethical prohibition on the use of secret recordings by defense
lawyers in criminal cases, thus depriving them of an investigative
tool available to the prosecution.
The use of evidence is geared toward eliciting the truth. Truth is
absolute and takes no sides. The defense should be given the same
opportunity to assume its attainment.
We recognize that secret recordings are a desirable tool in
detecting and providing crime; and, that our legal tradition
guarantees the fullest protection to a criminally accused.
There is no ethical impropriety in secretly recording potentially
adverse witnesses in criminal cases for the purpose of providing a
means of impeachment in a criminal trial, provided one party to the
communication has consented and provided such recording does not
violate any law.
Further, any lawyer may record an utterance which is itself a
felonious crime, including bribe offers and attempted extortions,
provided one party to the communication has consented and provided
such recording does not violate any law.
Secret recordings of lawyers, clients, witnesses, or other persons
in civil matters is in violation of DR 1-102(A)(4) of the Code and
FORMAL ETHICS OPINION 81-F-14 is hereby expressly rescinded.
This 18th day of July, 1986.
William R. Willis, Chmn W. J. Flippin Cecil D. Branstetter
G.Wilson Horde,V-Chm. Henry H.Hancock Michael E. Callaway
Jerry C. Colley Charles T. Herndon Edwin C. Townsend
APPROVED AND ADOPTED BY THE BOARD