Our Dirty Little Secret Recording: A History and Critique of Ethical Rules regarding Lawyers Secretly Recording Conversations

By Jones, Doug | Jones Law Review, Fall 2007 | Go to article overview

Our Dirty Little Secret Recording: A History and Critique of Ethical Rules regarding Lawyers Secretly Recording Conversations


Jones, Doug, Jones Law Review


I. INTRODUCTION

What do Scott Peterson's girlfriend, Lynda Tripp, Richard Nixon, and Jeanine Pirro all have in common? All were participants in scandals which involved the secret recording of conversations. (1) The Pirro scandal is the most recent and interesting example. In September 2006, Ms. Pirro, a former District Attorney and Republican candidate for New York State Attorney General, called a press conference to deny that she illegally taped conversations between her husband and his mistress. (2) At the press conference, Ms. Pirro admitted that she discussed the idea with Bernard Kerik, a former New York City Police Commissioner. (3)

The Pirro story received attention because of its adulterous sub-text and the public notice of legal and ethical implications of a lawyer who secretly recorded a conversation. In general, the idea of secretly recording conversations leaves a sour taste because it is seemingly underhanded, cowardly and deceitful. Further, secret recordings trample over the concept of privacy, which society holds dear. Indeed, this disdainful view of the practice has been codified and many forms of secret recording are now illegal. (4)

For almost twenty-seven years, the American Bar Association Standing Committee on Ethics and Professional Responsibility ("the ABA Ethics Committee" or "The Committee") held that it is per se unethical for a lawyer to secretly record a conversation. (5) However, in 2001 the ABA Ethics Committee changed course. The Committee abolished the per se rule in favor of a rule that allows a lawyer to record a conversation secretly but prohibits a lawyer from secretly recording a conversation when the recording is accompanied by other unethical behavior. (6) This article theorizes that abandoning the per se ethical prohibition against the secret recording of conversations by lawyers was a mistake. A lawyer who secretly records a conversation is deceitful and dishonest, a violation of Model Rule 8.4's prohibition against such behavior. (7) Additionally, a strong argument can be made that secret recordings violate Model Rule 4.1, which forbids false statements even when there is no false denial that a conversation is being recorded. (8)

Part II will discuss the legal and historical background of secret recording. This section will enumerate its potential pros and cons, examine pertinent provisions in the Model Rules, and examine the approaches to the issue taken by New York State Bar associations. Part III will analyze the old per se unethical rule and the rationale behind it. Part IV will discuss the new rule, which permits secret recording unless additional unethical behavior accompanies it. This section will also examine the rationale of the rule change. Finally, and most importantly, Part V will critique and argue against the new rule. This section calls for a reinstatement of the old rule or, in the alternative, the promulgation of a new rule that prohibits lawyers from secretly recording conversations while allowing for limited, specifically enumerated, and strictly construed safe harbors.

II. THE COSTS AND BENEFITS OF SECRET RECORDING

Secretly taping conversations is not uncommon. Scott Peterson's girlfriend, Amber Frey, secretly taped him. (9) Linda Tripp secretly recorded her conversations with Monica Lewinsky. (10) Richard Nixon apparently taped his conversations with everyone in the Oval Office. (11) Given the prevalence of the practice of secret recording, it is not difficult to glean the motivations behind it. However, the issue of secret recording by lawyers is complex, and many benefits that derive from it come at a high cost.

From a systemic legal perspective, secret recording can be a useful tool. (12) Recording a witness may prevent the loss of evidence due to memory failure or the conscious or unconscious distortion of information. (13) Further, the recording may expose later testimony as unreliable or perjured, or it may discourage a party from giving such testimony in the first place. …

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