Attorney discipline for Illegal interception or recording of conversation

Overview
At one time, the American Bar Association (ABA) considered it ethical misconduct for an attorney to intercept or record a conversation without the consent of all of the parties to the conversation. The reaction of state regulatory authorities with the power to discipline professional misconduct was mixed. Some agreed with the ABA. Some agreed with the ABA, but expanded the circumstances under which recording could be conducted within ethical bounds. Some disagreed with the ABA view. D.C. Opinion No. 229 (1992) (recording was not unethical because it occurred under circumstances in which the uninformed party should have anticipated that the conversation would be recorded or otherwise memorialized); Mississippi Bar v. Attorney ST., 621 So.2d 229 (Miss. 1993) (context of the circumstances test); Conn. Bar Ass'n Op. 98-9 (1998) (same); Mich. State Bar Op. RI-309 (1998) (same); Me. State Bar Op. No. 168 (1999) (same); N.M. Opinion 1996-2 (1996) (members of the bar are advised that there are no clear guidelines and that the prudent attorney avoids surreptitious recording); N.C. RPC 171 (1994) (lawyers are encouraged to disclose to the other lawyer that a conversation is being tape recorded); Okla. Bar Ass'n Opinion 307 (1994) (a lawyer may secretly record his or her conversations without the knowledge or consent of other parties to the conversation unless the recording is unlawful or in violation of some ethical standard involving more than simply recording); Ore. State Bar Ass'n Formal Opinion No. 1991-74 (1991) (an attorney with one party consent may record a telephone conversation "in absence of conduct which would reasonably lead an individual to believe that no recording would be made"); Utah State Bar Ethics Advisory Opinion No. 96-04 (1996) ("recording conversations to which an attorney is a party without prior disclosure to the other parties is not unethical when the act, considered within the context of the circumstances, does not involve dishonesty, fraud, deceit or misrepresentation"); Wis. Opinion E-94-5 ("whether the secret recording of a telephone conversation by a lawyer involves 'dishonesty, fraud, deceit or misrepresentation' under SCR 20:8.4(c) depends upon all the circumstances operating at the time"). In New York, the question of whether an attorney's surreptitiously recording conversations is ethically suspect is determined by locality, compare Ass'n of the Bar of City of N.Y. Formal Opinion No. 1995-10 (1995) (secret recording is per se unethical) with N.Y. County Lawyer's Ass’n Opinion No. 696 (1993) (secret recording is not per se unethical). The ABA has since repudiated its earlier position.

Attorneys who engage in unlawful wiretapping or electronic eavesdropping will remain subject to professional discipline in every jurisdiction.177 In light of the ABA's change of position, courts and bar associations have had varied reactions to lawful wiretapping or electronic eavesdropping by members of the bar.178