Standing Committee on Legal Ethics Seeking Public Comment on Legal Ethics Opinion 1802

Pursuant to Part Six: Section IV, Paragraph 10-2(C) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on proposed advisory Legal Ethics Opinion 1802, Advising Clients on the Use of Lawful Undisclosed Recording.

LEO 1802

This proposed opinion generally addresses the ethical implications of a lawyer’s advising clients regarding the use of undisclosed recording.  The Committee introduces the opinion by discussing the legality of undisclosed recording since, fundamentally, a lawyer cannot advise a client to engage in conduct that is illegal or fraudulent. Rule 1.2(c).  The Committee notes that federal law and more than two-thirds of the states permit “one party consent recording.”  Virginia falls within this two-thirds majority.  See Virginia Code Section 19.2-62(B)(2).  The question then presented is, “May a lawyer advise a client to engage in lawful undisclosed recording without violating Rule 8.4(c)’s prohibition of deceitful conduct?”

Prior to answering this question, the Committee provides an in-depth analysis of Gunter v. Virginia State Bar, 238 Va. 617, and reviews its prior legal ethics opinions regarding undisclosed recordings.  The Committee notes that its very first ethics opinions on the subject did not impose a per se or general ban on undisclosed recording, but instead took the view that undisclosed recording only violates ethical rules when it occurs in conjunction with other unethical conduct.  In Gunter, the Supreme Court of Virginia ruled that the lawyer engaged in conduct involving “dishonesty, fraud, and deceit” for recording telephone conversations between third persons without consent or prior knowledge of each party to the conversation.  The recordings made were illegal under federal and state law.

It was after Gunter that the Committee issued a number of opinions resulting in a blanket ban on lawyers using or even advising their clients to use one-party consent recording.  Not until LEOs 1738 and 1765 did the Committee carve out any ethical exceptions to this blanket prohibition.  Concluding that prior opinions sweep too broadly, the Committee acknowledges in LEO 1738 that there exists three circumstances where such recording would be ethical: in a criminal investigation, in a housing discrimination investigation, and in situations involving threatened or actual criminal activity in which the recording lawyer was the victim.  LEO 1765 carves out an additional exception for a lawyer involved in government intelligence activities using non-consensual tape-recording as well as misrepresentation of identity and purpose.  The Committee reiterates in LEO 1765 the admonition in Gunter v. Virginia State Bar “that conduct that is legal may nevertheless be unethical for a lawyer”; however, the Committee further notes that “while these principles are important, they must also be balanced against the lawyer’s ethical obligations to the client.”  The Committee then examines two situations in which it believes that a lawyer may ethically advise or counsel a client to use lawful undisclosed recording to obtain information relevant to the client’s legal matter.

The first example reexamines the hypothetical presented in LEO 1448, where a father sexually abused his daughter for an extended period of time during her childhood.  Since the father openly acknowledges the abuse, the daughter’s lawyer suggests that she engage in undisclosed recording.  In balancing the competing interests of Rule 1.3 (requiring the lawyer to pursue the legal objectives of his client), Rule 1.2(a) (requiring the lawyer to consult with the client as to means by which [the client’s objectives’ are to be pursued), Rule 1.2(c) (prohibiting the lawyer from counseling the client to engage, or assist the client in conduct that the lawyer knows is criminal or fraudulent), and Rules 1.4(b) and (c) (requiring the lawyer to explain and give the client pertinent facts about a matter), the Committee overturns LEO 1448 and opines that that the lawyer may “advise, suggest or recommend” that the daughter lawfully record her conversation with her father, without disclosing that the conversation is recorded.  More...