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Friday, August 17, 2012

Wiretapping, Tape Recorders, and Legal Ethics: An Abridged Overview of Questions Posed by Attorney Involvement in Secretly Recording Conversation

Charles Doyle
Senior Specialist in American Public Law

In some jurisdictions, it is unethical for an attorney to secretly record a conversation even though it is not illegal to do so. A few states require the consent of all parties to a conversation before it may be recorded. Recording without mutual consent is both illegal and unethical in those jurisdictions. Elsewhere the issue is more complicated.

In 1974, the American Bar Association (ABA) opined that surreptitiously recording a conversation without the knowledge or consent of all of the participants violated the ethical prohibition against engaging in conduct involving “ dishonesty, fraud, deceit or misrepresentation.” The ABA conceded, however, that law enforcement recording, conducted under judicial supervision, might breach no ethical standard. Reaction among the authorities responsible for regulation of the practice of law in the various states was mixed. In 2001, the ABA reversed its earlier opinion and announced that it no longer considered one-party consent recording per se unethical when it is otherwise lawful.

Today, this is the view of a majority of the jurisdictions on record. A substantial number, however, disagree. An even greater number have yet to announce an opinion.

An earlier version of this report once appeared as CRS Report 98-251. An unabridged version of this report is available with the footnotes and attachment as CRS Report R42650, Wiretapping, Tape Recorders, and Legal Ethics: An Overview of Questions Posed by Attorney Involvement in Secretly Recording Conversation.

Date of Report: August 9, 2012
Number of Pages: 7
Order Number: R42649
Price: $19.95

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