In a domestic case, may a lawyer listen to a tape recording the client made illegally so the lawyer can use it to impeach the opposing spouse or to develop other evidence?

Plain-English summary

The opinion arose in a contested domestic matter involving allegations of adultery. The client, without the lawyer's knowledge or consent, illegally tape-recorded a conversation between her spouse and the spouse's paramour. The lawyer advised the client that the recording was illegal and should not be repeated. Although the recording was inadmissible, it could be admitted to impeach the spouse and the paramour. The lawyer asked three questions: whether the lawyer could ethically listen to the recording to be aware of its content for possible impeachment; whether the lawyer could use information from it to gather additional evidence; and whether the lawyer could use information from it to frame trial questions for the spouse and the paramour.

The opinion answered no to all three. It reasoned that the recording was the fruit of the client's illegal conduct, and that if the lawyer listened to it in order to use it in the representation, the lawyer would be enabling the client to benefit from her illegal conduct, which would be prejudicial to the administration of justice in violation of Rule 1.2(d). The opinion also cited Rule 7.2(a)(8). It resolved the second and third inquiries by reference to the first. The opinion further directed attention to the Federal Wiretap Act, 18 U.S.C. §2510 et seq., and particularly §§2511 and 2520, regarding criminal penalties for using or endeavoring to use the contents of an illegal wire communication.

Currency note

This opinion was issued in 1995, 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 Treat this page as historical context, not current guidance.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 listen to a recording the client made illegally to prepare for impeachment?

A: No. The opinion concluded the lawyer may not listen to the recording to be aware of its content for impeachment, because the recording is the fruit of the client's illegal conduct and using it would let the client benefit from that conduct, in violation of Rule 1.2(d).

Q: Can the lawyer use information from the illegal recording to find other evidence?

A: No. The opinion answered the second inquiry by reference to the first: using the information to gather additional evidence is likewise barred.

Q: Can the lawyer use what the recording reveals to shape trial questions?

A: No. The opinion answered the third inquiry the same way, prohibiting use of the information to form questions for the spouse and the paramour at trial.

Q: Does the opinion flag any non-disciplinary exposure?

A: Yes. The opinion directed attention to the Federal Wiretap Act, 18 U.S.C. §2510 et seq., particularly §§2511 and 2520, regarding criminal penalties for using or endeavoring to use the contents of an illegal wire communication.

Background and rules framework

The opinion applied North Carolina's then-current Rule 1.2(d), which corresponds to Model Rule 1.2(d) and bars a lawyer from counseling or assisting conduct the lawyer knows is criminal or fraudulent, framing the lawyer's use of the recording as conduct prejudicial to the administration of justice. It also cited Rule 7.2(a)(8), part of North Carolina's then-current misconduct rule corresponding to Model Rule 8.4. The opinion pointed to the Federal Wiretap Act as an external source of criminal exposure rather than as a basis for the ethics conclusion.

Citations and references

Rules of Professional Conduct:

• MR 1.2 (scope of representation; lawyer shall not assist crime or fraud)
• MR 8.4 (misconduct)
• North Carolina Rule 1.2(d)
• North Carolina Rule 7.2(a)(8)

Statutes:

• Federal Wiretap Act, 18 U.S.C. §2510 et seq., particularly §§2511 and 2520 (criminal penalties for using the contents of an illegal wire communication)

See also

• NC Ethics Op. RPC 220: using a recording made secretly by a third party

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-192/

Original opinion text

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

Inquiry #1:

Attorney represents Client W in a contested domestic matter involving allegations of adultery. Client W, without the knowledge or consent of Attorney, illegally tape records a conversation between Client W's Spouse and Spouse's paramour. Attorney advises Client W that tape recording the conversation was illegal and should not be repeated. The tape recording is inadmissible in court but may be admitted for purposes of impeaching Spouse and his paramour. May Attorney ethically listen to the illegal tape recording in order to be aware of its content in the event Spouse makes a statement in court that can be impeached with the tape recording?

Opinion #1:

No. The tape recording is the fruit of Client W's illegal conduct. If Attorney listens to the tape recording in order to use it in Client W's representation, he would be enabling Client W to benefit from her illegal conduct. This would be prejudicial to the administration of justice in violation of Rule 1.2(d). See also Rule 7.2(a)(8). Attention is directed to the Federal Wiretap Act, 18 U.S.C. Section 2510, et seq., particularly Sections 2511 and 2520, regarding criminal penalties for endeavoring to use or using the contents of an illegal wire communication.

Inquiry #2:

If Attorney may listen to the tape recording, may he use the information obtained from the tape recording to gather additional evidence?

Opinion #2:

No. See opinion #1.

Inquiry #3:

If Attorney may listen to the tape recording, may he use the information acquired from the tape recording to form questions to be asked to Spouse and Spouse's paramour at the trial?

Opinion #3:

No. See opinion #1.