Ohio Board Advisory Opinion Op 97-003

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 97-3
Issued June 13, 1997
WITHDRAWN BY OPINION 2012-1 ON JUNE 8, 2012
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is
superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: An attorney in the course of legal representation should not make
surreptitious recordings of his or her conversations with clients, witnesses, opposing
parties, opposing counsel, or others without their notification or consent. The act of
surreptitious recording by attorneys may violate DR 1-102(A)(4) unless the act when
considered in the context of the circumstances does not rise to the level of dishonesty,
fraud, deceit, or misrepresentation. The burden would be upon each individual attorney
to justify on a case by case basis why the facts and circumstances surrounding the
surreptitious recording did not violate DR 1-102(A)(4). Recognized exceptions to the
prohibition on surreptitious recording include prosecuting and law enforcement attorney
exception; criminal defense attorney exception; and extraordinary circumstances
exception.
OPINION: This opinion addresses the surreptitious recording by attorneys of their
conversations with others in the course of legal representation.
Is it ethically proper for an attorney in the course of legal representation to
surreptitiously record his or her wire or oral communication with clients,
witnesses, opposing parties, opposing counsel, or others?
Surreptitious is an adjective defining that which is “[m]ade, done, acquired by clandestine
or stealthy means.” Webster’s II New Riverside University Dictionary 1166 (1984).
Secret recordings made by a party to a conversation without the knowledge or consent of
the other party to the conversation are commonly referred to as “surreptitious recordings.”
Such recordings are also referred to as “one-party consensual recordings.”
The issue is not whether such recordings are legal. Under federal law it is not unlawful
“for a person not acting under color of law to intercept a wire, oral, or electronic
communication where such person is a party to the communication or where one of the
parties to the communication has given prior consent to such interception unless such
communication is intercepted for the purpose of committing any criminal or tortious act

Op. 97-3 2
in violation of the Constitution or laws of the United States or of any State.” 18 U.S.C. §
2511(2)(d)(1994). Under Ohio law, the prohibition against interception of
communications does not apply to “[a] person who is not a law enforcement officer and
who intercepts a wire, oral, or electronic communication, if the person is a party to the
communication or if one of the parties to the communication has given the person prior
consent to the interception, and if the communication is not intercepted for the purpose of
committing a criminal offense or tortious act in violation of the laws or Constitution of
the United States or this state or for the purpose of committing any other injurious act.”
Ohio Rev. Code Ann. § 2933.52(B)(4) (Baldwin, 1997). However, the issue addressed
herein is whether surreptitious recordings are ethical. The fact that it is lawful does not
settle the issue of whether it is ethical.
Over twenty years ago, the American Bar Association Committee expressed the view that
conversations recorded without the consent of all parties is conduct proscribed by DR 1-
102(A)(4). In Formal Op. 337(1974), the ABA Committee on Ethics and Professional
Responsibility advised that with the exception noted below “no lawyer should record any
conversation whether by tapes or other electronic device, without the consent or prior
knowledge of all parties to the conversation.” Canons 1, 4, 7, and 9 and Ethical
Considerations 1-5, 4-4, 4-5, 7-1, 9-2, and 9-6 were cited in support of the conclusion.
The stated exception was that “[t]here may be extraordinary circumstances in which the
Attorney General of the United States or the principal prosecuting attorney of a state 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 limitations conforming to constitutional
requirements.” ABA, Formal Op. 337 (1974).
Some states take the approach that it is not unethical per se for a lawyer to record his or
her conversations without the consent or prior knowledge of the other parties to the
conversation. See e.g., Hawaii SupCt, Formal Op. 30 (Modification 1995) (advising that
it is subject to case by case review); Mississippi Bar, Op. 203 (1992); New York County
Lawyers’ Ass’n, Op. 696 (1993); Oklahoma Bar Ass’n, Op. 307 (1994); Utah State Bar,
Op.96-04 (1996).
Some states follow the ABA view, prohibiting surreptitious recordings by attorneys
except for law enforcement attorneys and prosecuting attorneys. See e.g., Dallas Bar
Ass’n, Ops. 1991-02 (1991), 1981-5 (1981); State Bar of Texas, Ops. 514 (1995), 392
(1978). Some states recognize an exception for both prosecuting attorneys and criminal
defense attorneys. See e.g., State Bar of Arizona, Op. 90-02 (1990) (extending the
criminal law enforcement exceptions of Arizona Op. 75-13 (1975) to lawyers who
represent criminal defendants); Kentucky Bar Ass’n, Op. E 279 (1984) (permitting
criminal defense attorney to record witnesses); Tennessee SupCt, Formal Op. 86-F-14(a)
(1986) (recognizing exceptions for prosecutors and criminal defense attorneys). Some
states also acknowledge an exception for secret recordings of an utterance that is itself a
crime. See State Bar of Arizona, Op. 90-02 (1990); Tennessee SupCt, Formal Op. 86-F-
14(a) (1986).

Op. 97-3 3
One state prohibits surreptitious taping without acknowledging an exception. See
Virginia State Bar, LEO 1635 (1995), 1324 (1990). One state permits the recording of a
telephone conversation, but prohibits the recording of in-person conversation. See
Oregon State Bar Ass’n, Op. 1991-74 (1991). One state permits secret recordings of
clients, but prohibits secret recordings of other lawyers or witnesses. See Idaho State Bar,
Op. 130 (1989). The surreptitious taping of a conversation with opposing counsel has
been viewed as ethical. See e.g., North Carolina State Bar Ass;n, Op. 171 (1994). It has
also been viewed as unethical. See e.g., State Bar of Arizona, Op. 95-03 (1995). One
state advises that routine secret recording of telephone conversations would almost
certainly violate the ethical rules, but whether any particular telephone call may be
recorded depends on the circumstances of that call. See State Bar of Wisconsin, Op. E94-
5 (undated). One state concludes that there are no clear guidelines and that the prudent
lawyer should probably avoid surreptitious recording. See State Bar of New Mexico, Op.
1996-2 (1996).
Like other states, this Board strives for an interpretation that is reasoned. This Board’s
consideration of the issue is based upon DR 1-102(A)(4) of the Ohio Code of
Professional Responsibility.
DR 1-102(A)(4) A lawyer shall not engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation.
The legal profession has a duty of candor. The prohibition in DR 1-102(A)(4) against
dishonesty is a reflection of the duty of candor. Although society may change, the duty
remains. Individuals still expect candor from attorneys who are officers of the court.
Individuals still have some expectations of privacy in our society. This is true despite
advances in technology that make recording devices almost imperceptible. There are
those who do not expect their private conversations with others to be routinely recorded.
With this expectation, their words may not be spoken with the same precision as the
words would be written.
On the basis of candor and privacy expectations, it would be easy to conclude that
surreptitious taping by attorneys in legal representations is unethical. This is our
conclusion under routine circumstances; however, circumstances are not always routine,
and the Board would be in remiss to ignore necessary exceptions.
Valid exceptions to prohibition on surreptitious recording include: prosecuting and law
enforcement attorney exception (which applies to criminal law enforcement activity
conducted in accordance with statutory, judicial, or constitutional authority); criminal
defense attorney exception (which permits zealous representation to protect constitutional
rights of a criminal defendant); and extraordinary circumstances exception (which might
include attorneys’ needs to defend themselves or their clients against wrongdoing by
another). However, with these exceptions the burden would be upon each individual
attorney to justify why the facts and circumstances surrounding the surreptitious
recording did not violate DR 1-102(A)(4).

Op. 97-3 4
Although the accurate recall of information is important to attorneys in providing legal
representation, this on its own does not persuade the Board to condone the routine use of
surreptitious recordings in the practice of law. For those who wish to use taping as a way
of assisting the memory, consent may be obtained. The fact that an attorney wants to hide
the recording from the other person suggests a purpose for the recording that is not
straightforward. Recordings made with the consent of all parties to the communication
are consistent with the ideals of honesty and fair play, whereas recordings made by
clandestine or stealthy means suggest otherwise.
In conclusion, this Board advises that an attorney in the course of legal representation
should not make surreptitious recordings of his or her conversations with clients,
witnesses, opposing parties, opposing counsel, or others without their notification or
consent. The act of surreptitious recording by attorneys may violate DR 1-102(A)(4)
unless the act when considered in the context of the circumstances does not rise to the
level of dishonesty, fraud, deceit, or misrepresentation. The burden would be upon each
individual attorney to justify on a case by case basis why the facts and circumstances
surrounding the surreptitious recording did not violate DR 1-102(A)(4). Recognized
exceptions to the prohibition on surreptitious recording include the prosecuting and law
enforcement attorney exception; the criminal defense attorney exception; and the
extraordinary circumstances exception.
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of the
Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the
Code of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office.