Page 19 - April2019_BarJournal

COLuMN BarJournal

JULY/AUGUST 2015

surrepTiTiOus reCOrding

By aTTOrneys: eThiCal?

Sachin Java eThiCs perspeCTive

n recent years, disciplinary authorities states are California, Delaware, Florida, ethical when a lawyer believes a client plans
in various states have addressed Illinois, Maryland, Massachusetts, Montana, to commit a crime resulting in death or
the ethical issues posed by lawyers Nevada, New Hampshire, Pennsylvania, substantial bodily harm. The ABA Opinion
surreptitiously recording conversations and Washington. Vermont currently has no contains an additional deviation from this
Iwith clients, opposing counsel, and statute. As such, any surreptitious recording general rule and suggests a surreptitious
others. In Ohio, the Board of Professional in these jurisdictions would presumably be recording may be ethical where the lawyer
Conduct (the “Board”) issued Advisory illegal and per se unethical. has no reason to believe the client might
Opinion 2012-1 entitled “Surreptitious object. The Board, however, did not adopt
(Secret) Recording by Lawyers.” Therein, the Unethical Acts Associated with this deviation.
Board concluded that while a surreptitious Surreptitious Recording of Non-Clients Similar concerns of trust and
recording of a conversation by an Ohio lawyer by Lawyers confidentiality arise if a person is a
is not a per se violation of Prof.Cond.R. 8.4(c) Even if surreptitious recordings are legal prospective client as defined under the
(conduct involving dishonesty, fraud, deceit, in a given jurisdiction, attorneys must be Rules of Professional Conduct. In addition,
or misrepresentation) if the recording does mindful not to violate ethical rules. Examples Prof.Cond.R. 1.8(b) provides, lawyers have a
not violate the law of the jurisdiction in which of unethical acts include lying about the duty not to use information revealed during
the recording takes place, the acts associated recording, using deceitful tactics to become a consultation with a prospective client.
with a lawyer’s surreptitious recording may a party to a recorded conversation, and using Accordingly, per the Board, an attorney’s
well constitute misconduct under Prof. the recording to commit a crime or fraud. In conversation with that person should not
Cond.R. 8.4(c) or other rules. Furthermore, addition, under Prof.Cond.R. 4.4, lawyers be recorded without consent.
the Board stated that in general, Ohio lawyers are prohibited from employing surreptitious
should not record conversations with current recording without substantial purpose and Conclusion
clients or prospective clients without their may not utilize them to embarrass, harass, In Ohio, a surreptitious, or secret, recording
consent. The opinion was based in part on delay, or burden a third person. Furthermore, of a conversation by an Ohio lawyer is not
the ABA Standing Comm. on Ethics and the surreptitious recording cannot be a means a per se ethical violation if the recording
Professional Responsibility, Formal Op. 01- of obtaining evidence that violates the legal does not violate the law of the jurisdiction
422 (“ABA Opinion”). rights of a third person. See Prof.Cond.R., in which the recording took place, but the
Preamble ¶ [5] (“A lawyer should use the law’s acts associated with a lawyer’s surreptitious
Legality of Surreptitious Recording procedures only for legitimate purposes and recording may constitute a violation of the
The first question is whether such a not to harass or intimidate others.”) Rules of Professional Conduct. In addition, as
recording is legal. Ohio is a “one party a general rule, the Board has submitted that
consent” state. Specifically, in Ohio, Recording Clients or Prospective Clients Ohio lawyers should not record conversations
recording of wire, oral, and electronic Where conversations with a client or with clients or prospective clients without
communications is legal if the person prospective clients are concerned, the Board their consent.
instituting the recording is a party to the opines that a lawyer should not record client
communication or one of the parties to the conversations without the client’s consent.
communication has given prior consent. Secretly recording a client is simply not Sachin Java is an Associate at Gallagher Sharp
R.C. 2933.52. Thirty-seven other states consistent with the lawyer’s duties of loyalty LLP. A particular focus of his practice involves
and the District of Columbia have similar and confidentiality, which are central to the professional liability litigation, including
requirements. Federal law, under 18 U.S.C. attorney-client relationship. See Preamble, defending attorneys in legal malpractice
§ 2511, also allows “one party consent.” ¶ [4], Prof.Cond.R. 1.6, and Prof.Cond.R. actions. He currently serves on the Ethics
However, eleven states require the consent 1.7, comment [1]. Exceptions to this general Committee and has been a CMBA member
of all parties to a conversation or phone call rule might arise in very rare instances. For since 2011. Sachin can be reached at (216)522-
before a conversation can be recorded. Those example, a surreptitious recording may be 1164 or SJava@GallagherSharp.com.
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