Candid Microphone: Surreptitious Recording and Legal Ethics

We’ve all seen TV shows and movies where a secretly recorded conversation exposed some villainy—a love affair, confessions to embezzlement, perhaps an admission that testimony was fraudulent. On some of these shows, it might have been an attorney secretly recording the conversation. If the conversation was recorded by an attorney in Colorado, that attorney could face sanctions for surreptitious recording.

The Colorado Bar Association Ethics Committee adopted Formal Opinion 112 on July 19, 2003. The opinion asserts that it is generally improper for an attorney to secretly record a conversation, even if the recording is allowable under state law, because the conduct necessarily involves an element of deceit or trickery. In addition to Opinion 112, there are Rules of Professional Conduct that apply to surreptitious recording. Colo. RPC 8.4(c) bans conduct involving dishonesty, fraud, deceit, or misrepresentation. Is it possible to secretly record a conversation without violating Rule 8.4(c)?

Opinion 112 states two exceptions to the general prohibition on surreptitious recording. First, it makes an exception for criminal law, where “surreptitious recordings . . . have long been commonplace.” Next, and most controversially, an exception is provided for conduct that occurs strictly in the lawyer’s personal life.

Perhaps an attorney suspects spousal infidelity, and wishes to record a conversation that may implicate that spouse in an extramarital tryst. Perhaps that secretly recorded conversation will be used in the attorney’s divorce proceeding. Perhaps that attorney is self-represented. Would the recording then become fodder for a disciplinary proceeding, since the recording was used in the practice of law?

These questions are difficult to answer with certainty, but case law points to a conclusion on the permissibility of surreptitious recording in a lawyer’s personal life. That case law will be discussed by Jack Tanner and Jerry Pratt on December 20, 2011, in their one-hour lunch time CLE program, “Candid Microphone: Surreptitious Recording and Legal Ethics.” Registration information below.

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