Can a North Carolina lawyer listen to and use a tape recording of the client made secretly by a third party, when an earlier opinion barred using a recording the client made illegally?

Plain-English summary

The opinion addressed a defense lawyer whose client was indicted on indecent-liberties charges. The complaining child's parents had secretly tape recorded phone conversations between the child and the client; the lawyer learned of the tape through discovery and demanded copies. A prior opinion, RPC 192, held that a lawyer may not listen to or use an illegal tape recording made by the lawyer's own client. The inquiry asked whether that responsibility changes when the recording, which contained information relevant to the defense, was made by someone other than the client.

The opinion concluded that the controlling question was one of statutory interpretation under Title III of the federal wiretap act, 18 U.S.C. 2510 et seq., which the Ethics Committee could not answer. If listening to or using the information was not a violation of the Act, the lawyer could listen to the tape and use it at trial. If the lawyer was unsure of the legality and believed it was in the client's best interest, the lawyer should take appropriate procedural steps to obtain the court's determination, citing Rule 7.1(a)(1). The opinion distinguished RPC 192: that opinion barred a lawyer from benefiting a client from the client's own illegal recording of an opposing party, whereas here the client was not seeking to benefit from her own illegal activity, so, provided the Act was not violated, using the recording was not prejudicial to the administration of justice under Rule 1.2(d). The opinion gave the same answer where the district attorney intended to offer the tape, and confirmed that even in the RPC 192 fact pattern a lawyer may move to test admissibility and use the tape if the court rules it admissible.

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 Treat this page as historical context, not current guidance.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 North Carolina lawyer use a recording of the client that a third party made secretly?

A: It depends on federal wiretap law, which the committee would not interpret. The opinion concluded that if listening to or using the recording does not violate 18 U.S.C. 2510 et seq., the lawyer may use it at trial.

Q: What should the lawyer do if the legality of using the tape is unclear?

A: Seek a court ruling. The opinion concluded the lawyer should take appropriate procedural steps to obtain the court's determination before listening to or using the tape, citing Rule 7.1(a)(1).

Q: How is this different from RPC 192's bar on illegal recordings?

A: RPC 192 barred a lawyer from helping a client benefit from the client's own illegal recording of an opposing party. The opinion concluded that here the client was not benefiting from her own illegal conduct, so using a third party's recording, if lawful, was not prejudicial to the administration of justice.

Background and rules framework

The opinion applied North Carolina's then-current Rule 1.2(d), barring conduct prejudicial to the administration of justice (corresponding to Model Rule 8.4), and Rule 7.1(a)(1), addressing the pursuit of the client's lawful objectives (corresponding to Model Rule 1.2). It treated the legality of using the recording as governed by Title III of the federal wiretap statute rather than by the Rules of Professional Conduct, and distinguished its earlier opinion RPC 192.

Citations and references

Rules of Professional Conduct:

• MR 8.4 (misconduct; conduct prejudicial to the administration of justice)
• MR 1.2 (scope of representation; lawful objectives)
• North Carolina Rule 1.2(d), Rule 7.1(a)(1)

Statutes:

• Title III, Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510 et seq. (notably 2511(1)(d) and (2)(d))

Other opinions cited:

• RPC 192 (lawyer may not use a client's own illegal recording of an opposing party)

See also

• NC Ethics Op. RPC 221: receipt of evidence of a crime
• No further sibling opinions yet indexed.

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-220/

Original opinion text

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

Inquiry #1:

Client X was indicted on two counts of taking indecent liberties with a 14 year old boy. The boy's parents secretly tape recorded telephone conversations between the boy and Client X. Attorney A, who represents Client X, obtained discovery from the district attorney from which he learned of the existence of the tape and demanded copies. RPC 192 rules that a lawyer may not listen to an illegal tape recording made by his or her client nor may the lawyer use the information on the illegal tape recording to advance the client's case. Does the ethical responsibility of a lawyer change if a tape recording, which contains information relevant to the defense of the client, was made by someone other than the lawyer's client?

Opinion #1:

Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §2510 et seq. (the "Act"), it is illegal to intentionally intercept any telephone conversation without the consent of one of the parties to the conversation. However, whether it is illegal for Client X or Attorney A to listen to or use information contained in a tape recording of Client X made under the circumstances described in the inquiry is a question of statutory interpretation which cannot be answered by the Ethics Committee. See generally 18 U.S.C. §2511(1)(d) and (2)(d). If listening to or using the information from the tape recording under these circumstances is not a violation of the Act, Attorney A may listen to the tape recording and may use the information obtained from the tape recording in trial. If Attorney A is unsure of the legality of listening to the tape recording and he believes that it is in the best interest of his client's defense to do so, he should take the appropriate procedural steps to obtain the court's determination regarding the issue. See Rule 7.1(a)(1) of the Rules of Professional Conduct.

This situation is distinguishable from RPC 192. RPC 192 prohibits a lawyer from listening to and using the information from a clearly illegal tape recording of a conversation of the opposing party made by a client because a lawyer should not enable a client to benefit from illegal conduct. Attorney A's client, on the other hand, is not seeking to benefit from her own illegal activity. Provided it is not a violation of the Act, listening to and using the contents of the tape recording to represent Client X is not prejudicial to the administration of justice. See Rule 1.2(d).

Inquiry #2:

If the district attorney advises Attorney A that the district attorney intends to offer the tape in evidence, does Attorney A have an obligation to listen to the tape recording in order to be prepared to address its contents in the trial?

Opinion #2:

Whether Attorney A may listen to the tape recording is a question of law which cannot be answered by the Ethics Committee. See opinion #1 above. However, if listening to the tape recording is illegal or Attorney A is unsure of the legality of listening to the tape recording, he should take the appropriate steps to seek the court's permission to listen to the tape recording in order to prepare for motions regarding the admissibility of the tape recording. See Rule 7.1(a)(1).

Inquiry #3:

In the fact situation set forth in RPC 192, the client made a tape recording of a conversation to which he was not a party. In this situation, may the lawyer file a motion to test the admissibility of the tape recording and, if the court determines that the tape is admissible, listen to the tape and use the information obtained on the tape and the tape itself at trial?

Opinion #3:

Yes. See opinions #2 above.