Can a lawyer secretly tape-record a phone or in-person conversation with opposing counsel about a pending case without telling them it is being recorded?

Plain-English summary

The inquiry asked whether it is unethical for an attorney to tape-record a conversation with an opposing attorney about a pending case without disclosing that the conversation is being recorded.

The opinion concluded that it is not a violation of the Rules of Professional Conduct. It added that, as a matter of professionalism, lawyers are encouraged to disclose to the other lawyer that a conversation is being tape recorded. An editor's note records that the opinion was originally published as RPC 171 (Revised).

Currency note

This opinion was issued in 1994, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer secretly record a conversation with opposing counsel?

A: Yes. The opinion concluded that recording a conversation with an opposing attorney about a pending case without disclosing the recording does not violate the Rules of Professional Conduct.

Q: Does the lawyer have to tell opposing counsel the call is being recorded?

A: The opinion did not require it. It encouraged disclosure as a matter of professionalism, but treated nondisclosure as not a rules violation.

Background and rules framework

The opinion addressed undisclosed recording of opposing counsel without citing a numbered Rule of Professional Conduct, resolving the question as one of whether such recording violated the Rules and concluding that it did not. It framed the disclosure point as professionalism rather than a disciplinary requirement.

Citations and references

Rules of Professional Conduct:

• The opinion did not cite a specific numbered rule; it concluded the conduct did not violate the Rules of Professional Conduct.

See also

• DC Ethics Op. 229: surreptitious tape recording by an attorney
• KY Ethics Op. E-279: secretly recording conversations with defense counsel
• NYC Bar Op. 1995-10: secret taping of conversations between lawyers
• CO Ethics Op. 112: surreptitious recording

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-171/

Original opinion text

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

Editor's Note: This opinion was originally published as RPC 171 (Revised).

Inquiry:

Is it unethical for an attorney to make a tape recording of a conversation with an opposing attorney regarding a pending case without disclosing to the opposing attorney that the conversation is being recorded?

Opinion:

No, it would not be a violation of the Rules of Professional Conduct. However, as a matter of professionalism, lawyers are encouraged to disclose to the other lawyer that a conversation is being tape recorded.