In Formal Opinion 01-422, the ABA Committee withdrew Opinion 337 and took a more generous view of recording by lawyers. The Committee decided that secret recording was not necessarily dishonest. The Committee cautioned lawyers that they could not engage in secret recording that violated the law of the jurisdiction where the recording occurred, nor could they misrepresent that a conversation was not being recorded. The Committee did not reach a conclusion on whether it was permissible for a lawyer to secretly record a conversation with the lawyer’s client, but it agreed that it was inadvisable to do so.
The Committee gave several reasons for its reversal of Opinion 337: First, courts and bar ethics committees had had mixed reactions to the per se rule of that opinion. Many had criticized the view that recording by a lawyer without the consent of the other party is inherently deceitful given that such conduct is lawful in the great majority of states and recording devices are now widely used. Second, recording often serves legitimate purposes; for example, when a lawyer records threats of criminal conduct or witness statements to prevent possible perjury. Third, the Code of Professional Responsibility applied when the Committee issued Opinion 337. Under the Code lawyers had an obligation to avoid even the appearance of impropriety. The Model Rules have eliminated this vague standard. With regard to the rights of third parties, Rule 4.4 governs; lawful recording for legitimate purposes without the consent of the other person does not violate that rule.
Opinion 01-422 drew a distinction between secret recording itself, which it found not to be inherently misleading, and misrepresentations by an attorney about whether a conversation was being recorded, which the committee found to be improper. Even prior to the opinion some courts had recognized this distinction.
While the issuance of Opinion 01-422 may prompt some courts and state ethics committees that had followed Opinion 337 to change their decisions, lawyers who practice in states where prevailing case law adheres to Opinion 337 cannot safely rely on Opinion 01-422.101 In fact, even after the issuance of Opinion 01-422, some courts continue to find the practice of secret recording inherently deceptive. For example, in Nissan Motor Co., Ltd. v. Nissan Computer Corp.” (180 F. Supp. 2d 1089 (C.D. Cal. 2002).
Quotation from Nathan M. Crystal, Professional Responsibility – Problems of Practice and the Profession (Aspen Law & Business 5th ed. 2011), p. 325-6
Relevant Law: Model Rule 4.4
Mentioned Ethics Opinion ABA Formal Opinion 01-422