GPSolo Magazine - September 2006

Trial Practice
To Tape or Not to Tape: Secret Recordings

This article explores the subject of secret recording by lawyers not engaged in law enforcement activities. We begin with an analysis and overview of the arguments for and against allowing secret taping. Next, we review the current state of the law and ethics of secret taping.

The pros and cons. The advantages and disadvantages of allowing lawyers to secretly record conversations may be assessed from the points of view of our justice system, the legal profession, the lawyer who does the recording, and the lawyer’s client.

From a systemic perspective, recording what a potential witness has to say helps prevent loss of evidence owing to memory failure and the conscious or unconscious distortion of testimony by information learned at a later point by the witness. It may expose later testimony as unreliable or perjured as well as discourage such testimony in the first instance. If secret recording of witness statements becomes commonplace, a negative result may be an increase in the number of witnesses refusing to talk with lawyers.

From the point of view of the organized bar, secret taping has both a positive and a negative aspect. If such taping increases the amount of information available to resolve factual issues and the reliability of witness testimony, then the bar might see it as improving our justice system. The negative aspect is that secret taping by lawyers may be seen as deceptive and reflect badly on the profession.

From the attorney’s perspective, a benefit of taping a conversation with a witness is the potential use of the tape to prove that the lawyer did not intimidate, coerce, or bribe the witness. Of course, the lawyer could openly tape interviews or have a third party present, such as an investigator, but the lawyer may believe that such arrangements would lead to witnesses being more guarded or refusing to talk to the lawyer.

From the client’s perspective, secret taping by one’s lawyer may give the client access to exculpatory information the client might not otherwise have and it may allow a lawyer to impeach false or unreliable testimony against the client. A potential downside for the client is that such recordings may constitute discoverable material. Under Federal Rule of Criminal Procedure 26.2 and many reciprocal state discovery rules, for example, prior recorded statements by a defense witness must be turned over to the prosecution for use in impeachment. If the recording provides a means for impeaching a witness who testifies favorably for the defense, then the recording could wind up hurting the client’s position.

A fairness rationale relying on balance or symmetry between the prosecution and the defense may also be offered in support of secret taping. If the government is allowed to use secret taping as a way to gather evidence but the defense is not, doesn’t that give the government an unfair advantage?

The law on secret recording . Federal statutes and more than two-thirds of state statutes permit the taping of conversations as long as one party to the conversation consents. It is therefore legal in most states for a lawyer to secretly record a conversation with a potential witness. But it is almost always illegal for the lawyer to arrange to record a potential witness’s conversation with another if at least one of the parties to the conversation has not consented. In addition, federal law provides that no part of an illegally intercepted oral or wire conversation may be admitted into evidence. When a conversation is lawfully recorded, a lawyer may seek to admit it into evidence if it is used to impeach or there is an applicable hearsay exception.

The ethics of secret recording. Ethics codes, such as the ABA Model Rules of Professional Conduct, do not specifically address covert recording by lawyers. The secret recording of conversations potentially implicates a number of general ethical standards, however. Model Rule 8.4 states that it is “professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

In 1974 the ABA Standing Committee on Ethics and Professional Responsibility in Formal Opinion 337 prohibited secret recordings, reasoning that secret recordings would be tantamount to dishonesty or misrepresentation. The ABA affirmed this position a year later and stated that a lawyer was also ethically prohibited from directing an investigator to tape- record a conversation without the knowledge of the other party.

In the years after ABA Formal Opinion 337, many state ethics authorities followed it. Others did not, concluding that when done legally, a lawyer is ethically permitted to secretly record conversations. For example, the State Bar of Arizona Ethics Committee considered whether an investigator retained by a public defender could surreptitiously tape an interview with a potential witness “to obtain impeachment material on the witness should the testimony of the witness be different at the trial than in the interview.” In reversing an earlier opinion prohibiting secret recordings, the ethics committee in Arizona Opinion 90-02 stated, “The practicalities of the present day criminal justice system seem to be inconsistent with any continued prohibition against surreptitious recordation of a witness.”

The ABA withdrew Opinion 337 in 2001. Its current position, set forth in Formal Opinion 01-422, is that “[a] lawyer who electronically records a conversation without the knowledge of the other party or parties to the conversation does not necessarily violate the Model Rules.” As do ethics opinions from several states, the ABA opinion advises that a lawyer may not make secret recordings in violation of the law “nor falsely represent that a conversation is not being recorded.” In reaching this new position, the ABA noted that its prior position relied in part on the prohibition against the appearance of impropriety, which does not appear in the Model Rules. Further, Model Rule 4.4, dealing with “respect for rights of third persons,” proscribes “means that have no substantial purpose other than to embarrass, delay or burden a third person,” and “methods of obtaining evidence that violate the legal rights of such a person.” By implication, the ABA sees conduct that has a valid purpose and does not violate a person’s legal rights as permitted by Model Rule 4.4. Thus, prior Opinion 337 was at odds with the Model Rules. The ABA’s new position on secret recording is consistent with a growing number of state ethics opinions.

Although secretly recording conversations with a third-party witness is legal and ethical in some jurisdictions, it is uncertain if secretly recording conversations with a client is ethical. A lawyer owes a duty of loyalty to the client not owed to a third-party witness. The ABA Standing Committee split on whether the Model Rules forbid a lawyer from secretly recording a conversation with a client concerning the subject matter of the representation. There is also a division in state ethics opinions addressing this issue.

 

Peter A. Joy is a professor of law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri; he can be reached at joy@wulaw.wustl.edu. Kevin C. McMunigal is the Judge Ben C. Green Professor of Law at Case Western Reserve University School of Law in Cleveland, Ohio; he can be reached at kcm4@case.edu.

For More Information about the Criminal Justice Section

- This article is an abridged and edited version of one that originally appeared on page 36 of Criminal Justice, Spring 2006 (21:1).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/crimjust.

- Periodicals: Criminal Justice , quarterly magazine; Criminal Justice Newsletter, three times per year; White Collar Crime Newsletter, three times per year (electronic).

- Books and other recent publications: Achieving Justice: Freeing the Innocent, Convicting the Guilty; ABA Standards for Criminal Justice; Annual Survey of Supreme Court Decisions; Asset Forfeiture: Practice and Procedure in State and Federal Courts; Child Witness in Criminal Cases; The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers; Fourth Amendment Handbook, 2d ed.; Juvenile Justice Standards, Annotated; The Shadow of Justice (fiction); A Portable Guide to Federal Conspiracy Law: Tactics and Strategies for Criminal and Civil Cases; Practice Under the Federal Sentencing Guidelines; Restitution for Crime Victims: A National Strategy; Successive Criminal Prosecutions: The Dual Sovereignty Exception to Double Jeopardy in State and Federal Courts.

 

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