The Legal Ethics of Secret Client Recordings
Written By: John Bliss
Is it professional misconduct for a lawyer to record lawyer-client conversations without providing notice? When this question hit the national headlines with the summer 2018 release of Michael Cohen’s recordings of Donald Trump, an unresolved area of legal ethics doctrine was brought to public attention. The ABA’s current position is that the Standing Committee is “divided” and unable to offer a disciplinary standard on secret client recordings. This ambivalence is reflected in the lack of consensus across U.S. jurisdictions. Amid recent transformative developments in recording technology, and heated public debate about the risks and benefits of secret recording, the bar can no longer afford to avoid this issue.
In the prevailing doctrinal framework, secret client recordings are prohibited when they constitute deceit in violation of the widely adopted Model Rule 8.4(c). As recording technology has grown more pervasive, the bar has increasingly concluded that secret recording is no longer deceitful—under the assumption that people no longer feel that they were deceived when they learn that they were recorded without notice. Yet, even if the deceit rationale for prohibiting secret recording is in decline, this Article argues that secret recording of clients deserves a separate analysis drawing on client-specific professional duties that weigh heavily against the practice. The Article concludes by assessing the exceptional circumstances where such recordings might be justified by exigent public-interest purposes. This analysis revisits and sheds new light on the fundamental tension between lawyers’ duties to clients and the public.