A lawyer may electronically record telephone conversations with clients and third parties without the other party or parties to the conversation being made aware that the conversations are being recorded.
In Opinion No. 575 (November 2006), the Professional Ethics Committee of the State Bar of Texas concluded that lawyers may surreptitiously record their telephone conversations. The opinion reverses what had been the PEC’s position for most of the past three decades. The PEC noted:
It is recognized that there are legitimate reasons a lawyer would electronically record conversations with a client or third party. Among the legitimate reasons are to aid memory and keep an accurate record, to gather information from potential witnesses, and to protect the lawyer from false accusations.
No provision of the Texas Disciplinary Rules of Professional Conduct specifically prohibits a lawyer’s unannounced recording of telephone conversations in which the lawyer participates. Moreover, applicable law does not generally prohibit such recordings in Texas by a participant to a telephone conversation, whether or not the participant recording the conversation is a lawyer. See section 16.02 et seq. of the Texas Penal Code and section 2511 of title 18 of the United States Code.
After reconsidering the issue, this Committee is of the opinion that the Texas Disciplinary Rules of Professional Conduct do not generally prohibit a lawyer from making undisclosed recordings of telephone conversations in which the lawyer is a party, provided that certain requirements are complied with as discussed below.
Rule 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct provides that a lawyer "shall not . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation; . . . ." In view of the fact that persons in Texas are generally not prohibited from making undisclosed recordings of their telephone conversations and that many businesses routinely record telephone conversations on business premises with or without notice, the Committee does not believe that an undisclosed recording of a telephone conversation by a party to the conversation can be termed to involve "dishonesty, fraud, deceit or misrepresentation" within the meaning of Rule 8.04(a)(3). Hence, absent more, a Texas lawyer’s undisclosed recording of his telephone conversation with another person should not be held to violate Rule 8.04(a)(3). Since, as already noted, an undisclosed recording of a telephone conversation by a party to the conversation is not a crime under Texas or Federal law, there appears to be no other provision of the Texas Disciplinary Rules of Professional Conduct that could be said to be violated by such an undisclosed recording. Accordingly, subject to the qualifications discussed in the next paragraph, the undisclosed recording of telephone conversations by a Texas lawyer should not be treated as a violation of the Texas Disciplinary Rules of Professional Conduct.
The Committee notes several qualifications to the conclusion reached above. First, in view of the rights conversations on business premises with or without notice, the Committee does not believe that an undisclosed recording of a telephone conversation by a party to the conversation can be termed to involve "dishonesty, fraud, deceit or misrepresentation" within the meaning of Rule 8.04(a)(3). Hence, absent more, a Texas lawyer’s undisclosed recording of his telephone conversation with another person should not be held to violate Rule 8.04(a)(3). Since, as already noted, an undisclosed recording of a telephone conversation by a party to the conversation is not a crime under Texas or Federal law, there appears to be no other provision of the Texas Disciplinary Rules of Professional Conduct that could be said to be violated by such an undisclosed recording. Accordingly, subject to the qualifications discussed in the next paragraph, the undisclosed recording of telephone conversations by a Texas lawyer should not be treated as a violation of the Texas Disciplinary Rules of Professional Conduct.
The Committee noted several qualifications to the conclusion reached above.
- First, in view of the rights of a client to the lawyer’s protection of confidential client information as provided in Rule 1.05 and the client’s rights against a lawyer’s involvement in an impermissible conflict of interest contrary to Rule 1.06, a lawyer should make an undisclosed recording of telephone conversations involving a client only if there is a legitimate reason to make the recording in terms of protection of the legitimate interests of the client or of the lawyer.
- Second, a lawyer should not make a recording of a telephone conversation with a client unless the lawyer can and does take appropriate steps consistent with the requirements of Rule 1.05 to safeguard confidential information that may be included in the recording of the telephone conversation.
- Third, in view of the requirement of Rule 8.04(a)(2) that a lawyer not be involved in the commission of a serious crime, a lawyer should not make an undisclosed recording of a telephone conversation if the telephone conversation proposed to be recorded by a lawyer is subject to other laws (for instance the laws of another state) that make such a recording a serious criminal offense.
- Finally, regardless of whether the client is involved in the telephone conversation or has consented to the recording, the lawyer may not under Rule 8.04(a)(3) make a recording of a telephone conversation if the making of such a recording would be contrary to a representation made by the lawyer to any person.
This opinion brings the PEC into general accord with the American Bar Association Standing Committee on Ethics and Professional Responsibility (the "ABA Committee"). In the ABA Committee’s Formal Opinion 01-422 (June 24, 2001), the ABA Committee withdrew Formal Opinion 337 (1974), which had held that a lawyer was not permitted to make undisclosed recordings of telephone conversations, and instead ruled that a lawyer may record his telephone conversations without disclosure to other parties to the calls provided that the recording is not in violation of applicable law and is not contrary to a representation by the lawyer that the conversation is not being recorded. The ABA Committee indicated that it was divided as to whether a lawyer was permitted to make an undisclosed recording of a telephone conversation with a client but indicated the Committee’s view that such recordings were generally inadvisable.
The PEC’s new opinion may be of assistance in addressing the amnesia some clients seem to suffer about what was said in telephone calls with their lawyers. While the PEC’s focus was clearly on lawyers taping calls with clients, don’t overlook the reference to third parties in the opinion, which sanctions the somewhat pernicious practice of lawyers taping lawyers. The transcripts of such lawyer-on-lawyer taping are bound to turn up in motion practice.
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