New York attorney Michael Cohen made headlines again after revealing that he secretly recorded conversations between himself and his client, President Donald Trump. Commentators have been quick to denounce this behavior as unethical.
Cohen recorded the conversation in New York, which is a one-party consent state. N.Y. Penal Law Sections 250.00, 250.05. Accordingly, his secret tape recordings were legal. Such conduct would be illegal in California, which is a two-party consent state. Cal. Penal Code Section 632. But legality aside, considering a lawyer´s fiduciary relationship with his or her clients, is such behavior unethical?
Not a Case of First Impression
Although a lawyer secretly tape recording a client is certainly unusual, it is not unprecedented. Bar associations have been discussing this issue for years, and have released a number of ethics opinions, analyzing a variety of fact patterns that involve lawyers surreptitiously recording clients as well as third parties.
In California, in the 1960s, Formal Opinion 1966-5 (1966) examined the circumstances under which California lawyers could tape record conversations. Much of the opinion focused on the legal prohibitions against secretly recording others without consent that were in effect at the time. It did conclude, however, that illegally recording unsuspecting third parties would also be unethical -- an analysis similar to what we would conduct today in a two-party consent state.
Other states have weighed in more recently.
Covert Client Recording in New York
In Michael Cohen's home state of New York, ethics opinions over the years have discussed whether lawyers who secretly record conversations with others, while legal, are unethical.
The New York State Bar Association Committee on Professional Ethics in Opinion #328 (1974), on the topic of Fairness and candor; Secret recording of conversation, concluded that "except in special situations," it was improper for an attorney who is engaged in private practice "to electronically record a conversation with another attorney or any other person without first advising the other party."
In explaining their rationale, they noted that even if clandestine recording of a conversation is not illegal, "it offends the traditional high standards of fairness and candor that should characterize the practice of law and is improper" (except in special situations, "if sanctioned by express statutory or judicial authority").
At the time Opinion #328 was issued, secretly recording phone conversations had been considered and uniformly disproved by other ethics committees in different jurisdictions, with only one exception that was not discussed in any detail.
This position evolved over the years, as discussed in New York City Bar Association Formal Opinion 2003-02: Undisclosed Taping of Conversations by Lawyers. This opinion held that as a matter of "routine practice," a lawyer "may not tape record conversations without disclosing that the conversation is being taped. A lawyer may, however, engage in the undisclosed taping of a conversation "if the lawyer has a reasonable basis for believing that disclosure of the taping would impair pursuit of a generally accepted societal good." Opinion 2003-02 modified two earlier opinions: NY City 1980-95 and 1995-10.
Importantly, the bar association recognized that "The fact that a practice is legal does not necessarily render it ethical." They noted that at the time of the opinion, undisclosed taping was illegal in a significant amount of jurisdictions, lending support to their conclusion that this was a practice in which attorneys should not readily engage.
The bar association also advises attorneys to carefully consider whether, if made public, an attorney´s surreptitious taping would be viewed as "fair and honorable."
With specific reference to the undisclosed taping of a client, Opinion 2003-02 described the conceivable ethically permissible circumstances as "few and far between."
Examining the issue through a different lens, the Washington D.C. Bar in Ethics Opinion 229, Surreptitious Tape Recording by Attorney, analyzed a fact pattern where a lawyer secretly tapes a meeting with a client and representatives of a federal agency who are investigating the client. The opinion concluded that such surreptitious recording was not unethical, as long as the lawyer "makes no affirmative misrepresentations about the taping."
The opinion rationalized that not only should the agency reasonably not expect any preliminary phase discussions would be confidential, but that they "should expect that such discussions will be memorialized in some fashion by the investigated party's attorney and that the record made may be used to support a claim against the agency."
Regarding relevant ethical rules, Opinion 229 analyzed the fact pattern under Rule 8.4 (c) (misconduct involving dishonesty, fraud, deceit or misrepresentation). In confining the analysis to legal ethics, it did not address legal questions arising from the surreptitious taping, assuming for purposes of the opinion that such conduct was legal.
Precedent from Other States
The D.C. Bar cited opinions from several other states that had concluded it was not unethical for lawyers to secretly record their clients.
They note that the Idaho bar opined that although lawyers may not secretly record telephone conversations with other lawyers or potential witnesses, they could record conversations with their own clients because these conversations were confidential (citing Idaho Op. No. 130 (May 10, 1989)). They also cited the Utah Bar, which held that lawyers may surreptitiously record electronically or mechanically communications not only with clients, but also with witnesses or other lawyers (citing Utah Op. No.90, undated).
The Texas Center for Legal Ethics tackled the lawyer-recording-client question in 2006. In Opinion 575 (2006), they considered whether a lawyer may surreptitiously electronically record a phone call between the lawyer and a client or third party.
After citing other ethics opinions on the issue, Opinion 575 cited what they consider to be legitimate reasons a lawyer might choose to record a telephone call with a client or third party. These include "to aid memory and keep an accurate record, to gather information from potential witnesses, and to protect the lawyer from false accusations."
They recognize the ethics rule at issue is Rule 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct, which states in pertinent part that a lawyer shall not "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." The issue is whether the undisclosed recording a phone call violates this provision.
Opinion 575 concludes that because Texas generally does not prohibit people from making undisclosed recordings of phone conversations, and many businesses in fact, with or without notice, routinely record telephone conversations on business premises, an undisclosed recording of a phone call by one of the parties to the conversation does not involve "dishonesty, fraud, deceit or misrepresentation" within the meaning of Rule 8.04(a)(3).
Not Necessarily Unethical, But Unadvisable
An ethics opinion by the American Bar Association on the topic of lawyers recording clients stopped short of the conclusions of some of the state ethics opinions. ABA Formal Opinion 01-422 (2001), Electronic Recordings by Lawyers Without the Knowledge of All Participants, states, "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." (Emphasis added.)
Opinion 01-422 also states that a lawyer may not "record conversations in violation of the law in a jurisdiction that forbids such conduct without the consent of all parties, nor falsely represent that a conversation is not being recorded." In reaching this conclusion, the ABA committee withdrew one of their prior opinions, Formal Opinion 337 (1974), which found that ethically, lawyers could not tape their conversations with others, except possibly in cases involving law enforcement personnel.
Opinion 01-422 diverges somewhat from ethics opinions from several states on the question as to whether a lawyer can secretly record a conversation with a client. It states, "The Committee is divided as to whether a lawyer may record a client-lawyer conversation without the knowledge of the client, but agrees that it is inadvisable to do so."
In discussing secretly recording within the context of investigations, however, the committee stated, "the mere act of secretly but lawfully recording a conversation inherently is not deceitful."
A Higher Calling
Lawyers are reminded that just because they might not be subject to discipline for certain behavior does not mean that they should engage in such behavior. Ethical rules are minimum standards. Professionalism calls lawyers to aspire to deliver a higher level of client care than is legally and ethically required.
The relationship between a lawyer and a client is founded on trust. For most lawyers, this truth permeates all aspects of legal representation. The lawyer-client relationship is also characterized by a duty of loyalty, and a client´s expectation that they can speak freely.
Lawyers are wise to analyze all ethical issues in light of established laws, rules, ethics opinions, case law, practical considerations, as well as a commitment to professionalism.