News flash: secret recording still unethical
The Arizona Supreme Court has rejected the Attorney Ethics Advisory Committee’s attempt to upend this state’s decades-long position that surreptitious recording by lawyers is per se unethical even though it may be legal.
The Court denied the AEAC’s proposed EO-20-0002 on April 13, directing that it not be posted or distributed.
This is the first time since the Rule 42.1, Ariz. R. Sup. Ct., procedure for issuing binding ethics opinions went into effect on January 1, 2019, that the Court flat-out rejected a proposed AEAC opinion. The Court once earlier directed the AEAC to revise a proposed opinion (proposed EO-19-0002, remanded to the AEAC for further work) but the Court did not give the AEAC that direction with proposed EO-20-0002.
The AEAC’s proposed opinion would have allowed an Arizona lawyer to secretly record a conversation or phone call if the lawyer were a party to the conversation or got permission from one party to the conversation in advance.
That conduct is legal, because Arizona is a so-called one-party consent state. But since at least 1965, State Bar of Arizona ethics opinions have concluded that it is, in general, unethical for lawyers to secretly record conversations while at the same time creating a host of exceptions.
Surreptitiously recording opposing counsel is deemed to involve an element of deceit and misrepresentation, thus violating ER 8.4(c) (“It is professional misconduct for a lawyer to … engage in conduct involving dishonesty, fraud, deceit or misrepresentation”). State Bar of Arizona Ethics Op. 95-03 (1995) said that
[d]espite the proliferation of modern recording devices and advancements in technology, it still is not common to record ordinary-course conversations between legal professionals. Attorneys do not expect that their opponent is recording a telephone conversation. On the contrary, attorneys normally expect that such recording is not occurring. The deceit and misrepresentation lies in the recording attorney's failure to disclose the fact that he or she is recording and preserving the statements of the other attorney for some purpose beyond the conversation.
Surreptitiously recording third parties is more complicated. SBA Op. 95-03 emphasized the general prohibition against surreptitious recording, but recounted exceptions created by State Bar of Arizona Op. 75-13 (1975), including that opinion’s conclusion that “[s]ecret recordings will be warranted only in rare cases where the attorney has first satisfied himself that there are compelling facts and circumstances justifying the use of a secret recording.”
The AEAC’s proposed opinion concisely outlined the somewhat confusing exceptions that the old State Bar opinions had created:
When the recording is of a statement that is itself a crime (such as a bribe or obscene phone call). [SBA Op. 75-13]
To protect the lawyer or client against perjured testimony, but not merely to record evidence of inconsistent statements or for other impeachment purposes. [SBA Op. 75-13]
When speaking with an informant or the subject of an investigation “as a matter of self-protection.” [SBA Op. 75-13]
For criminal defense attorneys, when conducting an investigation. [SBA Op. 90-02]
By the lawyer’s client, with advice from the lawyer regarding the legal right to do so. [SBA Op. 00-04]
When authorized by statute, court rule, or court order. [SBA Op. 75-13]
“Taken as a whole, [these] prior opinions appear to recognize that undisclosed recording, by the lawyer or by the client with the lawyer’s advice, may be an appropriate action to protect the interests of the client or the attorney in the context of a particular matter,” the AEAC’s proposed opinion said. “But if, as Op. 95-03 stated, undisclosed recording is ‘inherently deceptive’ and violative of ER 8.4(c), then it would be beyond the authority of this Committee to create any exceptions to that rule without some textual support.”
But against the backdrop of non-binding State Bar opinions, and all of the Op. 75-13 exceptions, the Supreme Court almost four decades ago weighed into the issue in a reported discipline case. In In re Wetzel, 143 Ariz. 34 (1984), the Court concluded that the lawyer had violated the Code of Professional Responsibility (the rules in effect prior to the Rules of Professional Conduct) by surreptitiously recording other lawyers as well as a State Bar investigator. The lawyer had claimed he recorded the conversations in compliance with SBA Op. 75-13 because he was trying to “protect” himself from “liars.”
The Court rejected his argument and concluded he had violated the Code provision that was the equivalent of current ER 8.4(c) as well as Code provisions that prohibited conduct that adversely reflected on a lawyer’s fitness to practice law and knowingly engaging in other illegal or unethical conduct. The Court also inexplicably stated that the lawyer had “violated” non-binding advisory Op. 75-13.
What do other jurisdictions do? Some jurisdictions, and the American Bar Association, say surreptitiously recording is not per se unethical. ABA Formal Op. 01-422 (June 24, 2001) concluded if the law of the jurisdiction where the record occurs allows non-consensual recording, “a lawyer does not violate the Model Rules merely by recording a conversation without the consent of the other parties to the conversation.”
The 2001 ABA opinion reversed a 1974 opinion that had imposed a “broad prescription” on surreptitious recording. SBA Op. 95-03 – the 1995 opinion that concluded that surreptitiously recording opposing counsel involves an element of deceit and misrepresentation – had cited the 1974 ABA opinion in support.
The AEAC’s proposed opinion noted the ABA’s change of position to support its attempt to upend the no-surreptitious-recording ban, as well as other states that take the position that undisclosed recording is not per se unethical.
So, what does the Court’s action rejecting the AEAC’s proposed opinion mean for Arizona lawyers?
It raises interesting issues between the interplay of Rule 42.1 — the rule by which the Supreme Court created the AEAC and the concept of binding ethics opinions — and the old non-binding State Bar opinions.
When the Court denies a petition for review, it leaves in place the Court of Appeals decision. When the Court denies a petition to change an existing rule, it leaves the original rule in place. In rejecting the AEAC’s proposed EO-20-0002, what authority is the Court leaving in place?
For sure it leaves in place ER 8.4(c) and any other applicable rules, such as ER 4.4, which deals with respect for rights of others. Wetzel is still good law.
But what about those old State Bar opinions that created all of those categories of permissible conduct? Do the exceptions created in non-binding advisory opinions still apply to allow conduct that is otherwise inherently deceptive?
Complicating this even further is how the Court in Wetzel seemed to implicitly adopt SBA Op. 75-13 — and its exceptions to the no-surreptitious-recording ban — by concluding that the lawyer had “violated” that non-binding, advisory opinion. So, does that mean that even though State Bar opinions are not binding, Op. 75-13 provides valid exceptions that lawyers may rely on because of Wetzel? And what about the advisory opinions that followed Op. 75-13 to add to that opinion’s list of exemptions?
One thing is clear to me: By rejecting the AEAC’s proposed opinion, the Court did not want to open the door to giving Arizona lawyers blanket ethical authority to secretly record a conversation or phone call, even the conduct complies with state law.
If faced with this issue, Arizona lawyers always should start with the basic touchstone – still good after all these years – that in our state, secretly recording conversations is inherently deceptive (and violates ER 8.4(c)) even if doing so may be legal.
For many lawyers in many situations, the solution may be simple: just don’t secretly record. Instead, overtly record. A lawyer could disclose to other participants to the conversation that they plan to record it. If anyone doesn’t want to participate with that condition, then the conversation shouldn’t be recorded, or the objecting party could choose not to participate.
For any other more complicated scenarios? Who knows.