Can a lawyer secretly record conversations, and may a criminal defense lawyer secretly record witnesses in the case?

Plain-English summary

The Committee was asked whether a lawyer may secretly record conversations with clients, attorneys, judges, and the public where those persons are not witnesses in a criminal case the lawyer is defending (answer: no), and whether a lawyer defending an accused may secretly record conversations with witnesses in that proceeding (answer: yes). The opinion began with ABA Formal Opinion 337, which generally held that, with limited exceptions, no lawyer should record a conversation without the consent or prior knowledge of all parties, reasoning that DR 1-102(A)(4) (dishonesty, fraud, deceit, or misrepresentation) and Canon 9 (avoiding the appearance of impropriety) condemn such recordings.

The opinion adopted a narrow exception drawn from New York City Opinion 80-95: secret recording of conversations with other lawyers or clients remains improper in any context, and secret recording of witnesses in civil or commercial matters is unethical, but a criminal defense lawyer may secretly record witnesses in the proceeding. It gave several reasons: Title III of the Omnibus Crime Control and Safe Streets Act and 18 U.S.C. 2511(d) make one-party-consent recording lawful and United States v. White, 401 U.S. 745 (1971) upheld its use; a defendant should not be denied a tool prosecutors may use, implicating Sixth and Fourteenth Amendment concerns; the conduct does not so plainly diverge from accepted standards of candor and fairness as to be unethical; and the duties of competence and zealous representation (Canons 6 and 7) support it. The opinion distinguished recording a client (where the lawyer can simply withdraw if trust is lacking) from recording a witness, and advised that any lawyer who records should take steps to preserve the recording's integrity. The opinion revoked KBA E-98.

Currency note

This opinion was issued in 1984 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Later authorities (including ABA Formal Opinion 01-422) have revisited the ethics of undisclosed recording. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a Kentucky lawyer secretly record conversations under this opinion?

A: Generally no. The opinion concluded that recording without the consent of all parties would breach the Canons, following ABA Formal Opinion 337, with a narrow exception for criminal defense.

Q: What was the exception for criminal defense lawyers?

A: The opinion concluded that a lawyer defending a person accused in a criminal proceeding may secretly record conversations with witnesses in that proceeding.

Q: Did the exception cover recording clients or other lawyers?

A: No. The opinion adopted New York City Opinion 80-95's limit that recording conversations with other lawyers or clients remains improper in any context, criminal or civil.

Background and rules framework

The opinion applied DR 1-102(A)(4) (dishonesty, fraud, deceit, or misrepresentation) and Canons 1, 4, 7, and 9 of the former Code, together with federal wiretap law. The modern analogs are Model Rule 8.4(c) (conduct involving dishonesty) and Model Rule 1.3 (diligence). The analysis turned on weighing the deceit concern against a criminal defendant's need for an investigative tool available to the prosecution.

Citations and references

Rules of Professional Conduct:

• DR 1-102(A)(4); Canons 1, 4, 7, 9 (former Code)
• MR 8.4(c) (dishonesty); MR 1.3 (diligence)

Statutes:

• 18 U.S.C. 2511(d); Title III, Omnibus Crime Control and Safe Streets Act of 1968

Cases:

• United States v. White, 401 U.S. 745 (1971), constitutionality of consensual recordings

Other opinions cited:

• ABA Formal Opinion 337; New York City Opinion 80-95; KBA E-98 (revoked)

See also

• ABA Formal Op. 01-422: Secretly Recording Conversations
• KBA Ethics Op. E-289: Advising a Client About Secretly Recording Phone Calls

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-279.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-279
Issued: January 1984

This opinion was decided under the Code of Professional Responsibility, which was in
effect from 1971 to 1990. Lawyers should consult the current version of the Rules of
Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org),
before relying on this opinion.

Question 1:

May an attorney secretly record conversations with client, attorneys, judges, and the
public, including public officials, where said persons are not witnesses in a criminal
proceeding in which the attorney is employed as defense counsel?

Answer 1:

No.

Question 2:

May an attorney employed to defend a person accused in a criminal proceeding secretly
record conversations with witnesses in that proceeding?

Answer 2:

Yes.

References:

ABA Formal Opinion 337; Code of Professional Responsibility: Canons 1, 4, 7 and 9;
Disciplinary Rule 1-102(A)(4); and Ethical Consideration 1-5, 4-4, 4-5, 7-1, 9-2 and
9-6; Opinion No. 80-95, The Committee on Professional and Judicial Ethics of the Bar
Association of the City of New York; KBA E-98.
OPINION

ABA Formal Opinion 337 generally stated that with certain exceptions spelled out in the opinion,
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 basis for this opinion was that Canon 9
of the Code of Professional Responsibility stated that a lawyer should avoid even the appearance of
professional impropriety. The opinion also relied upon DR 1-102(A)(4) of the Code of Professional
Responsibility which stated that "a lawyer shall not engage in conduct involving dishonesty, fraud, deceit
or misrepresentation." The opinion went on to say: Canons 1, 4, 7 and 9, and Ethical Consideration all
clearly express axiomatic norms for attorney conduct. Each in the view of the Committee supports the
conclusion that lawyers should not make recordings without consent of all parties. Ethical
Considerations EC 1-5, 4-4, 4-5, 7-1, 9-2 and 9-6 all state in various ways the conduct of which lawyers
should aspire. None would condone such conduct. The conduct prescribed 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…"

Thus, where the lawyer is not representing a client in a criminal case and is not conversing with a
witness in that proceeding, then the recording of the conversation without the consent of all parties would
be deemed a breach of the Canons of Ethics.
However, when the attorney is representing a person accused in a criminal case it may be proper
for him to secretly record conversations with witnesses in that proceeding.
ABA Formal Opinion 337, in the last paragraph of the opinion stated that there may be
extraordinary circumstances in which the Attorney General of the United States or the principal
prosecuting attorney of a state or local government or law enforcement attorneys or officers acting
under the direction of the Attorney General or such principal prosecuting attorneys might ethically
make and use secret recordings if acting within strict statutory limitations conforming to constitutional
requirements. However, nothing was said about a defense attorney in a criminal proceeding ethically
making and using secret recordings if acting within strict statutory limitations conforming to
constitutional requirements. This oversight was noted by the Committee on Professional and Judicial
Ethics of the Bar Association of the City of New York in Opinion No. 80-95. In that opinion, the
Committee stated that its conclusion was limited to the secret recording of conversations with
witnesses in criminal proceedings. The Committee stated: "We continue to endorse the view that
secret recordings of conversations with other lawyers or with clients is improper in any context,
criminal or civil. Moreover, we continue to view as unethical secret recordings of witnesses in civil or
commercial matters."
There are several valid reasons for permitting a lawyer acting as defense counsel to secretly
record conversations with witnesses in the proceeding. Those reasons are as follows:

1. The Omnibus Crime Control and Safe Streets Act, passed in 1968 by Congress, contains Title III
   and authorized unconsented electronic interception of conversations through wiretaps and bugs.
   18 U.S.C. § 516. The statute provided that secret recordings by consent, that is, by a participant
   to a conversation, were legal. 18 U.S.C. 2511(d). In United States v. White, 401 U.S. 745 (1971),
   the Supreme Court of the United States upheld the constitutionality of using such secret
   recordings in trials. Thus, there is both legislative and judicial sanction for the use of such secret
   recordings by the government in criminal cases, and Congress expected prosecutors to play a role
   in the making of such recordings. Opinion 80-95, pp 3-4.
2. Why should a prosecutor be permitted to secretly record conversations and rely upon them but
   defense counsel not be entitled to record conversations of witnesses in the proceeding? To deny a
   defendant this right may well violate his constitutional rights under the Sixth and Fourteenth
   Amendments to the United States Constitution.
3. While agreeing with ABA Opinion 337 that a legislative determination that conduct is lawful
   does not always make the conduct ethical, by permitting defense counsel to secretly record the
   conversations of witnesses "is one which does not so plainly diverge from accepted standards of
   candor and fairness that it is inconsistent with ethical behavior... " Opinion 80-95, p. 9.
4. Canons 6 and 7 of the Code of Professional Responsibility require a lawyer to exercise
   competence in the zealous representation of his client. These duties apply in the context of
   criminal cases and justify his secret recording of conversations of witnesses in the representation
   of his client.

There are additional reasons why it may be necessary for an attorney representing a defendant in
a criminal case to secretly record the conversations with witnesses. In some instances, law enforcement
officials may be attempting to entrap the defense attorney into making some statement that could be used
against the attorney, either during the course of the trial that he is defending or in a prosecution against
the attorney. A recording of what was said is the best evidence under the circumstances. This will
preclude a future swearing contest between the witness and the attorney as to what was said.
The distinction made here between secretly recording the conversation of a witness and the
lawyer's client is simply that if the client will refuse to consent to the recording of a conversation with
the attorney, the attorney is free to withdraw from the case either by consent of the client or with court
approval. There should be a degree of mutual trust between the attorney and his client. However,
while the attorney seeks the truth from the witness, there generally does not exist a feeling of mutual
trust. The attorney by law has a right to record the conversation even without the consent of the
witness. 18 U.S.C. 2511(d). If the witness later disputes the conversation or what was said during the
conversation, the recording will be the best evidence. Questions may arise as to whether the recording
was tampered with so as to change the meaning thereof. However, in this day of scientific electronic
equipment, it can generally be determined whether there has been any alteration of the recording
following its initial recording. Any attorney secretly recording a conversation should take steps to
preserve the integrity of the recording so as to preclude any serious question being raised about a
subsequent alteration thereof.
This Opinion revokes KBA E-98.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar
Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The
Rule provides that formal opinions are advisory only.