May 12, 1998
Whether a lawyer may ethically record conversations without the consent or prior knowledge of the parties involved is situation specific, not unethical per se, and must be determined on a case by case basis.
References: MRPC 4.4, 8.4(b), CI-200, MCL 750.539, et seq, 18 USC 2511(2)(d), ABA Formal Opinion 337 (1974), Sullivan v. Gray, 117 Mich App 476; 324 NW2d 58 (1982); Law of Lawyering; Handbook on the Model Rules of Professional Conduct, New York Op 696, Oklahoma Op 307 (1994).
The issue of whether a lawyer may secretly record the conversations of others without their consent has been addressed by a number of ethics opinions from other states that have split on the issue. Due to the alleged prevalence of clandestine recording of conversations in today's society, and the lack of a recent Michigan ethics opinion, the Committee has concluded it would be wise to provide guidance to the lawyers of this state regarding this issue.
There is only one Michigan ethics opinion that considers the propriety of a lawyer recording conversations without the consent of the parties involved. That opinion, CI-200, (interpreting the Code of Professional Responsibility) concluded that such secret recording was unethical, and explicitly adopted the reasoning found in ABA Formal Opinion 337 (1974), which also concluded that the secret recording of conversations by lawyers was unethical. The ABA Committee based its opinion on Canon 9 of the Code of Professional Responsibility, entitled "A lawyer should avoid even the appearance of professional impropriety," and cited DR-1-102 (A)(4) of the Code of Professional Responsibility. The ABA Opinion states in part:
"The conduct proscribed in DR 1-102(A)(4), i.e., conduct which involves dishonesty, fraud, deceit or misrepresentation in the view of the Committee clearly encompasses the making of recordings without the consent of all parties. With the exception noted in the last paragraph, the Committee concludes that no lawyer should record any conversation whether by tapes or other electronic device, without the consent or prior knowledge of all parties to the conversation."
The ABA opinion is extremely broad, prohibiting the undisclosed recording of any conversation with any party, even though such activity is not unlawful under federal or state law.
MRPC 8.4(b) is substantially similar to the disciplinary rule cited in ABA Formal Opinion 337 and states in pertinent part:
"It is professional misconduct for a lawyer to:
". . .
"(b) engage in conduct involving dishonesty, fraud, deceit, misrepresentation, or violation of the criminal law, where such conduct reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer;"
Under Michigan law, it is not a violation of the Michigan eavesdropping statutes, MCL 750.539, et seq., for a participant in a conversation to secretly record that conversation without the consent of the other participants. Sullivan v. Gray, 117 Mich App 476; 324 NW2d 58 (1982). The Federal Wiretapping Act specifically excludes from the conduct prohibited by the Act the interception of communications by a person who is part of the communication. 18 USC 2511(2)(d). The committee notes that while the conduct may be lawful, the conduct is not ethical per se.
The Committee is aware of a trend in other states to permit the recording of conversations by lawyers, under certain circumstances. As noted in the Law of Lawyering: Handbook on the Model Rules of Professional Conduct, 2d Edition, Hazard and Hodes Aspen Law & Business, a number of ethics opinions in other states have concluded that the secret recording of conversations by lawyers is not unethical. For example, the New York County Lawyers association approved the practice of secret recording, so long as the lawyer answers truthfully upon inquiry and does not make misleading use of the recorded statements. New York County Lawyers Association Opinion 696 (undated). The Association rejected the ABA opinion because, "normative standards have changed with technology: recording conversations is now a common practice that cannot be deemed underhanded or otherwise deviant." Id. Similarly, the Oklahoma Bar Association reached the same conclusion based upon similar reasoning:
"We believe [ABA] Formal Opinion 337 is overly broad and that it is not per se deceptive. Therefore, it is not unethical for an attorney to record conversations with persons from whom the attorney has not obtained consent. Attorneys document conversations routinely. Recordation is merely a technological convenience, providing a more accurate means of documenting rater than relying on one's memory, notes, shorthand, transcription, etc, for recall." Ok. Bar Ass'n Op 307 (1994).
MRPC 4.4 states:
"In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person."
To the extent that there was no similar rule under the old Code of Professional Responsibility, and MRPC 4.4 is inconsistent with ABA Formal Opinion 337, MRPC 4.4 should overrule the ABA Statement. C. Wolfram, Modern Legal Ethics, §124.4 (1986); Adams, "Tape Recording Telephone Conversations – Is it Ethical for Attorneys?" 15 J. Legal Prof. 171 (1990), Oklahoma Bar Association Opinion 307 (1994).
"The time has come" the Walrus said, "to talk of many things . . . ." The committee believes that ABA Formal Opinion 337 is over broad, and the rationale which supported its statement some twenty-four years ago has weakened. Whether a lawyer may ethically record a conversation without the consent or prior knowledge of the parties involved is situation specific, not unethical per se, and must be determined on a case by case basis.