TNBPR July 23, 1981

Can a Tennessee lawyer secretly tape record a discovery deposition for later voice stress analysis without telling the witness or opposing counsel?

Short answer: No, as originally decided. Adopting ABA Formal Opinion 337, the opinion concluded that secretly recording conversations, including a deposition taped for undisclosed voice stress analysis, is unethical regardless of its legality under federal law, though a lawyer who discloses the intent to record need not volunteer every reason for doing so unless the recorded person asks, in which case the lawyer must answer candidly. The Board vacated this opinion on September 11, 2015 due to changes in the law or rules.

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This page answers the general question as of 1981. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Currency note

The Board of Professional Responsibility vacated this opinion on September 11, 2015 due to changes in the law or rules; Formal Ethics Opinion 86-F-14(a) later addressed related secret-recording questions for criminal defense lawyers. It was also issued in 1981, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Plain-English summary

The Board was asked whether an attorney may tape record a discovery deposition in a civil lawsuit for the purpose of voice stress analysis, not for use as evidence but as an investigative tool for later questioning, without telling the witness or adverse counsel the purpose for taping the testimony.

The Board adopted ABA Formal Opinion No. 337 (1974), which had concluded that, as to clients and other attorneys, a lawyer must not make recordings without the consent of the parties to the conversation. The ABA opinion reasoned that although the law was not clear or uniform on recording conversations of other persons, it was difficult to draw a principled distinction: if undisclosed recording is unethical when the recorded party is a client or fellow lawyer, the same should hold when the recorded person is a layperson, since the layperson is unlikely to perceive any basis for a different rule. By analogy to ABA Formal Opinion 150, the ABA opinion concluded that secret recording of conversations of any person by an attorney is unethical, even where legal under federal law.

Adopting that ruling, the Board concluded that secret recording of conversations by an attorney is unethical. It added that if the intent to record a conversation is disclosed to the other person in advance, no Canon or principle requires the attorney to divulge all reasons or purposes for making the recording, unless the recorded party asks, in which case the attorney must be candid and may not deceive the inquirer by commission or omission.

Common questions

Q: Can I secretly record a deposition to analyze voice stress later, without telling the witness?

A: No, as this opinion originally held. The Board "adopts the ruling of ABA Formal Opinion No. 337 and concludes that the secret recording of conversations by an attorney is unethical," which covered the described deposition-recording scenario.

Q: If I tell the other person I am recording, do I have to explain why?

A: Not unless asked. The opinion states that once "the intent to record a conversation is disclosed to the other person in advance, there is no Canon or principle which requires the attorney making the recording to divulge to the other parties all of his reasons or purposes for making the recording, unless inquiry is made by the recorded party."

Q: What if the recorded party asks why I am recording?

A: The lawyer must answer truthfully. The opinion requires that "in the event of such inquiry, the attorney must be candid and may not deceive the inquirer, either by commission or omission."

Q: Does it matter that secret recording might be legal under federal wiretapping law?

A: No. The opinion states secret recording is unethical "even though legal under Federal Law," treating the ethical rule as independent of the recording's legality.

Background and rules framework

The opinion adopted ABA Formal Opinion No. 337 (1974) and reasoned by analogy to ABA Formal Opinion 150 on undisclosed recording of conversations. The modern correlate is Model Rule 8.4 (misconduct, including conduct involving dishonesty or misrepresentation), noted here as a navigational cross-reference rather than a rule the opinion itself applied.

Citations and references

Rules of Professional Conduct:

Model Rule 8.4 (misconduct), modern correlate

Other opinions cited:

ABA Formal Opinion No. 337 (1974): a lawyer must not record a conversation without the consent of the parties to it
ABA Formal Opinion 150: analogous reasoning on undisclosed recording of conversations

Source

Landing page: https://www.tbpr.org/ethic_opinions/81-f-14

Original opinion text

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

81-F-14 - Vacated*

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.

FORMAL ETHICS OPINION 81-F-14

An opinion has been requested on the following question:

May an attorney tape record a discovery deposition in a civil lawsuit for the purpose of voice stress analysis, not for evidence but as an investigative tool for later questioning, without telling the witness or adverse counsel his purpose for taping the testimony?

ABA Formal Opinion No. 337 (1974) states as follows:

So far as clients and other attorneys are concerned, the prior Informal Opinion makes the conclusion clear. Attorneys must not make recordings without the consent of the parties to the conversation ...

While the law is not clear or uniform as to recording by lawyers of conversations of "other persons", it is difficult to make a distinction in principle. If undisclosed recording is unethical when a party is a client or a fellow lawyer, should it not be unethical if the recorded person is a layperson? Certainly the layperson will not be likely to perceive the ground for distinction.

At least by analogy to Formal Opinion 150, secret recording by attorneys of conversations of any person is unethical, even though legal under Federal Law.

This Board adopts the ruling of ABA Formal Opinion No. 337 and concludes that the secret recording of conversations by an attorney is unethical.

However, if the intent to record a conversation is disclosed to the other person in advance, there is no Canon or principle which requires the attorney making the recording to divulge to the other parties all of his reasons or purposes for making the recording, unless inquiry is made by the recorded party. In the event of such inquiry, the attorney must be candid and may not deceive the inquirer, either by commission or omission.

This 23rd day of July, 1981.

ETHICS COMMITTEE:

W. H. Lassiter

Randall Burcham

George E. Morrow

APPROVED AND ADOPTED BY THE BOARD

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