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 Responsibility.
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 prohibited.
FORMAL ETHICS OPINION 81-F-14 is hereby expressly rescinded.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
Michael E. Callaway
Jerry C. Colley
Charles T. Herndon
Edwin C. Townsend
APPROVED AND ADOPTED BY THE BOARD