81-F-14 - Vacated*

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.


An opinion has been requested on the following question:
May an attorney tape record a discovery deposition in a
civil lawsuit for the purpose of voice stress analysis, not for
evidence but as an investigative tool for later questioning,
without telling the witness or adverse counsel his purpose
for taping the testimony?

ABA Formal Opinion No. 337 (1974) states as follows:
So far as clients and other attorneys are concerned, the prior
Informal Opinion makes the conclusion clear. Attorneys
must not make recordings without the consent of the parties
to the conversation ...

While the law is not clear or uniform as to recording by
lawyers of conversations of "other persons", it is difficult to
make a distinction in principle. If undisclosed recording is
unethical when a party is a client or a fellow lawyer, should
it not be unethical if the recorded person is a layperson?
Certainly the layperson will not be likely to perceive the
ground for distinction.

At least by analogy to Formal Opinion 150, secret recording
by attorneys of conversations of any person is unethical,
even though legal under Federal Law.

This Board adopts the ruling of ABA Formal Opinion No. 337 and concludes that the
secret recording of conversations by an attorney is unethical.  

However, if the intent to record a conversation is disclosed to the other person in
advance, there is no Canon or principle which requires the attorney making the recording
to divulge to the other parties all of his reasons or purposes for making the recording,
unless inquiry is made by the recorded party. In the event of such inquiry, the attorney
must be candid and may not deceive the inquirer, either by commission or omission.

This 23rd day of July , 1981.


W. H. Lassiter
Randall Burcham
George E. Morrow