Can a Texas lawyer secretly record a conversation, by phone or in person, without telling the other party it is being recorded?

Plain-English summary

The inquiry asked whether an attorney, in the course of practicing law, may electronically record a conversation without first informing all parties to it. The Committee answered that, as a general matter, he should not.

The Committee acknowledged that recording a conversation, by telephone or in person, is not a violation of law if done with the consent of one party, even without the knowledge or consent of the other, citing authorities including Rathbun v. United States. It held, however, that attorneys are held to a higher standard under Canons 1 and 9, reasoning that the secret recording of conversations offends the sense of honor and fair play of most people. Normally, therefore, no attorney should electronically record a conversation with another party without first informing that party, a concern the Committee said applies with particular force to conversations between attorneys, where candor and confidentiality should be strictly observed.

The Committee recognized that there may be extraordinary circumstances in which the state attorney general or local government or law-enforcement attorneys, or officers acting under their direction, might ethically make and use secret recordings if acting within strict statutory limitations conforming to constitutional requirements. It did not address those exceptions, which would require case-by-case examination, and it cited ABA Formal Opinion 337 and New York Formal Opinion 328. The Committee overruled former Texas Opinion 84 (November 1953).

Currency note

This opinion was issued in 1978, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, and Texas never adopted the ABA's Ethics 2000 framework. National thinking on this question has since shifted: the ABA withdrew Formal Opinion 337 and, in Formal Opinion 01-422 (2001), concluded that undisclosed recording is not inherently unethical, so the categorical "normally improper" view in this opinion no longer reflects the prevailing position. The closest current Texas provision on dishonest conduct is Rule 8.04, with ABA analogs Model Rules 8.4 and 4.4. Subsequent rule changes 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: Could a Texas lawyer secretly record a conversation under this opinion?

A: Per the opinion, normally no. The Committee concluded that, even though one-party-consent recording is legal, attorneys are held to a higher standard and normally should not record without informing the other party.

Q: Does the conclusion apply to recording other lawyers?

A: Especially so. The Committee said the concern applies with particular force to conversations between attorneys, where candor and confidentiality should be strictly observed.

Q: Were there any exceptions?

A: The Committee noted possible exceptions for the attorney general or government and law-enforcement attorneys acting under their direction within strict statutory and constitutional limits, but it did not decide those, leaving them to case-by-case examination.

Background and rules framework

The opinion rests on Canons 1 and 9 and the Ethical Considerations and Disciplinary Rules on honesty (EC 1-5, EC 9-6, DR 1-102(A)(4), DR 7-102(A)(8)) of the former Texas Code of Professional Responsibility, applied to undisclosed recording, with reference to ABA Formal Opinion 337 and New York Formal Opinion 328. The closest current provision is Texas Rule 8.04, with ABA analogs Model Rules 8.4 and 4.4. The analysis turns on the higher standard of honor and fair play expected of lawyers.

Citations and references

Rules of Professional Conduct:

• MR 8.4 (misconduct, including conduct involving dishonesty or deceit); MR 4.4 (respect for the rights of third persons), as the modern analogs
• Canon 1, Canon 9, EC 1-5, EC 9-6, DR 1-102(A)(4), DR 7-102(A)(8) (former Texas Code of Professional Responsibility)

Cases:

• Rathbun v. United States, 355 U.S. 107 (1957), one-party-consent recording is not unlawful

Other opinions cited:

• ABA Formal Opinion 337; New York Formal Opinion 328: undisclosed recording by lawyers
• Tex. Comm. on Professional Ethics, Op. 84 (1953): overruled

See also

• ABA Formal Op. 01-422: Secret Electronic Recording by Lawyers
• Ohio Op. 1997-003: Surreptitious Recording of Conversations by Attorneys
• NY State Bar Op. 515: Surreptitious Recording of a Conversation

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-392/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_392.pdf

Original opinion text

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

QUESTION PRESENTED

ATTORNEY RECORDING CONVERSATION WITHOUT CONSENT OR KNOWLEDGE

Canon 1; EC 1-5; 9-6

EC DR 1-102 (A)(4); 7-102 (A)(8)

May an attorney in the course of his practice of law electronically record a conversation without first informing all parties to the conversation?

DISCUSSION

While the recording of a conversation either by telephone or in person is not a violation of law if done with the consent of one party to the conversation, even though done without knowledge or consent of the other party, 35 Tex. L.Rev. 440, 58 ALR 2d, 1026, 47 U.S.C. P605, Rathbun v. United States 355 U.S. 107, 110-111 (1957); nevertheless, attorneys are held to a higher standard by Canons 1 and 9. The secret recording of conversations offends the sense of honor and fair play of most people.

Normally, therefore, no attorney should electronically record a conversation with another party, without first informing that party that the conversation is being recorded. This particularly applies to conversations between attorneys when candor and confidentiality should be strictly observed.

There may be, however, extraordinary circumstances in which the state attorney general or local government or law enforcement attorneys or officers acting under the direction of the attorney general or such principal prosecuting attorneys might ethically make and use secret recordings if acting within strict statutory limitations conforming to constitutional requirements. This opinion does not address such exceptions which would necessarily require examination on a case by case basis. See ABA Formal Opinion 337; New York Formal Opinion 328.

Accordingly, former Texas Opinion 84 (November, 1953) is hereby overruled.

Tex. Comm. On Professional Ethics, Op. 392 (1978)