Can a lawyer secretly listen, over a speakerphone or other device, to a conversation between the lawyer's own client and the adverse party, without the adverse party's knowledge or consent?
Apply this to your situation
This page answers the general question as of 1985. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiry asked about the ethical propriety of an attorney listening, over a speaker telephone or any other method or device, to a conversation between the attorney's client and an adverse party, without the adverse party's knowledge and consent. The opinion applied Disciplinary Rule 7-104, which governs a lawyer's ethical responsibility in communicating with an adverse party, and noted Black's Law Dictionary's definition of "communication" as information given, or the sharing of knowledge by one with another. It also applied Disciplinary Rule 1-102(A)(2), which prohibits a lawyer from circumventing an ethical responsibility through the actions of another.
The opinion concluded that an attorney is personally responsible for compliance with the attorney's ethical responsibilities, and that all communications by an attorney with an adverse party must be direct and fully comply with DR 7-104(A)(1) of the Code. Any communication by an attorney with an adverse party accomplished by subterfuge, including listening in through the client over a speakerphone or any other indirect mechanical or electronic method or device, without the adverse party's knowledge and consent, is prohibited.
Currency note
Vacated. The Board of Professional Responsibility vacated Formal Ethics Opinion 85-F-89 on September 11, 2015 due to changes in the law or rules. This opinion was also issued in 1985, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. A vacated opinion has no continuing force and is not the Board's current guidance. It is reproduced and summarized here only as a historical research record. Do not rely on it as current; verify the current rules on communication with represented persons under RPC 4.2 before acting.
Common questions
Q: Can a lawyer secretly listen in on a phone call between the lawyer's client and the opposing party?
A: No. The opinion held this is a prohibited indirect communication with the adverse party, accomplished through the client as a conduit, without the adverse party's knowledge or consent.
Q: Does it matter that the lawyer's client is the one actually talking, not the lawyer?
A: No. The opinion found the attorney personally responsible for ethical compliance and could not avoid the direct-communication requirement by circumventing it through the client's actions on a speakerphone or similar device.
Background and rules framework
The opinion applied Disciplinary Rule 7-104 (communication with an adverse party) and Disciplinary Rule 1-102(A)(2) (prohibition on circumventing ethical responsibilities through another's actions) of the Code of Professional Responsibility. The modern correlate is Model Rule 4.2 (communication with a person represented by counsel), cited here as a navigational cross-reference rather than a rule the opinion itself applied; this opinion has since been vacated, so current RPC 4.2 controls.
Citations and references
Rules of Professional Conduct:
- Disciplinary Rule 7-104(A)(1), Code of Professional Responsibility (direct-communication requirement with an adverse party)
- Disciplinary Rule 1-102(A)(2), Code of Professional Responsibility (no circumventing ethical responsibilities through another)
See also
Source
- Landing page: https://www.tbpr.org/ethic_opinions/85-f-89
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
85-F-89 - Vacated*
*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.
FORMAL ETHICS OPINION 85-F-89
Inquiry is made concerning the ethical propriety of an attorney listening, over a speaker telephone, or any other method or device, to a conversation between his client and an adverse party without the knowledge and consent of the adverse party.
Disciplinary Rule 7-104 of the Code of Professional Responsibility addresses the attorneys' ethical responsibility in communicating with an adverse party.
Blacks Law Dictionary, Fifth Edition (1979) at Page 253, defines "communication" as "information given; the sharing of knowledge by one with another ...."
Disciplinary Rule 1-102(A)(2) of the Code prohibits an attorney from circumventing his ethical responsibility through the actions of another.
The attorney is personally responsible for the compliance of his ethical responsibilities. All communications by an attorney with an adverse party must be direct and in full compliance with the Code of Professional Responsibility, specifically DR 7-104(A)(1). Any such communications by an attorney with an adverse party by subterfuge, through the client over a speaker telephone or any other indirect mechanical or electronic methods or device, without the knowledge and consent of the adverse party, is prohibited.
This 13th day of March, 1985.
ETHICS COMMITTEE:
W. J. Flippin, Chairman
Henry H. Hancock
Edwin C. Townsend
APPROVED AND ADOPTED BY THE BOARD
Get today's answer for your situation
You just read a 1985 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.