Formal Opinions
Formal Opinion 123
SECRET ELECTRONIC RECORDING OF A CONVERSATION WITH A NONCLIENT IS NOT A VIOLATION, ABSENT OTHER CIRCUMSTANCES
The issue to be addressed is whether an attorney violates the Rules of Professional Conduct by secretly recording a conversation.
Missouri informal advisory opinions1 have stated that an attorney may not secretly record a conversation, even if the attorney is a party to the conversation. This approach originated long ago and was, historically, the approach taken by the ABA2 and other jurisdictions. However, the ABA3 and many other jurisdictions have changed their approach to this issue. The Advisory Committee is of the opinion that the approach in Missouri should change as well. The Advisory Committee agrees with the reasoning of ABA Formal Opinion 01-422.
An attorney may record a conversation, to which the attorney is a party, without notifying the other parties to the conversation, unless other factors are present including, but not limited to: (1) laws prohibiting the recording in the jurisdiction in which the recording would occur, (2) the attorney states or implies that the conversation is not being recorded, or (3) the conversation involves a current client of the attorney.
In some jurisdictions laws prohibit secret recording, even if the person recording is a party to the conversation. An attorney may not record a conversation, secretly or otherwise, if the act of recording would be illegal.
An attorney may not engage in dishonesty, deception, misleading statements, or misrepresentation about whether the attorney is recording the conversation. Such conduct would violate Rule 4-8.4(c).
If the recording is of a conversation with a current client, the attorney must give some notice to the client that the attorney is, or may be, recording the conversation. Giving this notice is necessary under the attorney's duty to communicate with the client4 and is consistent with the attorney's duty of loyalty to the client. This notice could be given by disclosure at the time of the recording. The attorney could also have previously informed the client that the attorney tape records conversations from time to time and will not necessarily notify the client each time. However, if the client objects to lack of specific notice, the attorney must give specific notice to the client at the time of recording.
March 8, 2006
Footnotes
1 For example, Informal Advisory Opinions 970022 and 950074
2 ABA Formal Opinion 337 (1974) (Withdrawn 2001)
3 ABA Formal Opinion 01-422 (2001)
4 Rule 4-1.4
Formal Opinion 122
SETTLEMENT TERM PROHIBITED THAT REQUIRES WITHDRAWING, REFRAINING FROM FILING, OR DECLINING TO COOPERATE REGARDING A COMPLAINT
The question to be addressed is whether it is a violation of Supreme Court Rule 4, the Rules of Professional Conduct for an attorney to participate in a settlement in which a term of the settlement is that a party will withdraw, refrain from filing, or decline to cooperate regarding, a complaint under Supreme Court Rule 5.
"The fundamental purpose of an attorney disciplinary proceeding is to 'protect the public and maintain the integrity of the legal profession.'" In re Snyder, 35 S.W.3d 380, 384 (Mo. banc 2001). A settlement between individuals that effectively eliminates the potential for a disciplinary proceeding related to allegations of an attorney's misconduct is contrary to the public policy reasons for establishing a system for attorney discipline. The Advisory Committee agrees with the statement of the New Jersey Supreme Court in Matter of Wallace, 104 N.J. 589, 594, 518 A.2d 740, 743 (NJ 1986):
Public confidence in the legal profession would be seriously undermined if we were to permit an attorney to avoid discipline by purchasing the silence of complainants.
Other states have addressed this issue. Several states have adopted specific rules prohibiting this conduct.1 States that have decided the issue by case law have found this conduct to violate the disciplinary rules.2
It is the opinion of the Advisory Committee that an attorney who enters into, or attempts to enter into, a settlement that includes a term that a party to the agreement will withdraw, refrain from filing, or decline to cooperate regarding, a complaint under Supreme Court Rule 5 violates Rule 4-8.4(d) by engaging in conduct prejudicial to the administration of justice.
The complainant and respondent attorney involved in a complaint under Rule 5 may communicate with each other and attempt to resolve any problems between them. If they are able to resolve the problems that led to the complaint, they may enter into an agreement indicating that their problems have been resolved and that they will inform the Office of Chief Disciplinary Counsel or the Regional Disciplinary Committee of the resolution. This agreement may be reached as a part of the Complaint Resolution Program established by Rule 5.10 or independent of that program. Regardless, the agreement cannot provide that the complainant will withdraw a complaint, refrain from filing a complaint, or decline to cooperate with attorney discipline authorities. Under Rule 5.173, a complainant does not have the ability to withdraw a complaint, even if it were appropriate to request that a complainant do so.
March 8, 2006
Footnotes
1 For example, Illinois Rule of Professional Conduct 1.8(h); Massachusetts Supreme Judicial Court Rule 4:01, Section 10; Oregon RPC 1.8(h).
2 Most states that have addressed the issue have found that this conduct is conduct prejudicial to the administration of justice in violation of rules similar to Missouri's rule 4-8.4(d). Matter of Tartaglia, 20 A.D.3d 81, 798 N.Y.S.2d 458 (NY 2005); The Florida Bar v. Frederick, 756 So.2d 79 (FL 2000) Matter of Wilson, 715 N.E.2d 838 (IN 1999); People v. Vsetecka, 893 P.2d 1309 (CO banc 1995); Conduct of Boothe, 303 Or. 643, 740 P.2d 78 (OR 1987). Iowa found that it is misconduct because it frustrates the intent of the rule imposing a duty to report misconduct by other attorneys. Iowa Supreme Court Board Of Professional Ethics And Conduct v. Miller, 568 N.W.2d 665 (IA 1997). Oklahoma found it was improperly limiting liability to a client. Oklahoma Bar Association v. Colston, 777 P.2d 920 (OK 1989). See also ABA/BNA Lawyers Manual on Professional Conduct 51:1101
3 The unwillingness or neglect of the complainant to prosecute the charges or the settlement, compromise or restitution of the claim by the complainant shall not justify the failure to undertake or complete proceedings commenced pursuant to this Rule 5.