By now, we have all heard the audio from a secretly tape recorded conversation between New York attorney Michael Cohen and his high profile client President Donald Trump.
Struggling to hear to the words as both men often speak over each other, the truth is in the ear of the beholder in what has become a partisan audio Rorschach test. Yet the larger question remains: how is it that we have this tape in the first place?
True, Cohen´s recordings did not break the law because New York is a one-party consent state. But legality aside, did Cohen, being in a lawyer-client fiduciary relationship with the president, have an ethical duty to refrain from secretly taping his client?
Tape Recording Clients Unusual, But Not Unprecedented
Many legal commentators exclaim they have "never heard" of a lawyer taping a client.
While unusual, however, this behavior is not unprecedented. Bar association ethics committees have debated this issue for decades, resulting in a large amount of ethics opinions nationwide, analyzing a variety of fact patterns involving lawyers surreptitiously recording third parties — including clients.
While too numerous to mention them all, some opinions reflect a distinct theme.
As our society has become more technologically advanced, views have evolved regarding the propriety of clandestine recording — even by lawyers. Some people have become cynical, arguing that in one-party consent states, many people automatically assume they are being recorded whether they are conversing on the phone, in public, or even in private.
But a conversation between an attorney and a client is different than a run of the mill business-customer transaction—where very little personal information is exchanged. Individuals usually meet with lawyers when they are in a position of vulnerability, needing assistance that only a skilled, trained advocate can provide. The fiduciary relationship between a lawyer and client is what has caused bar associations to carefully analyze the ethics and propriety of clandestine recording.
Clandestine Client Recordings
Let´s start with Michael Cohen´s home state of New York. In 1974, the New York State Bar Association Committee on Professional Ethics (in Opinion No. 328) found that except in special situations, it was improper for an attorney who is engaged in private practice "to electronically record a conversation with another attorney or any other person without first advising the other party."
They held that even if clandestine recording of a conversation is not illegal, "it offends the traditional high standards of fairness and candor that should characterize the practice of law and is improper" (except in special situations, "if sanctioned by express statutory or judicial authority.")
This opinion was a sign of the times. When it was issued, secretly recording phone conversations had been considered and uniformly disproved by other ethics committees in different jurisdictions, with only one exception.
The position on the propriety of recording clients has evolved over the years.
Almost 30 years later, the New York City Bar Association (NYCBA) in Formal Opinion 2003-02, held that as a matter of "routine practice," a lawyer "may not tape record conversations without disclosing that the conversation is being taped.
But there was a caveat. The NYCBA opined that a lawyer may engage in the undisclosed taping of a conversation if the lawyer has a reasonable basis for believing that disclosure of the taping would "impair pursuit of a generally accepted societal good."
The NYCBA recognized that, "The fact that a practice is legal does not necessarily render it ethical." They noted that at the time of the opinion, undisclosed taping was illegal in a significant amount of jurisdictions, lending support to their conclusion that this was a practice in which attorneys should not readily engage.
The NYCBA also discussed practical considerations. They advised attorneys to carefully consider whether if made public, an attorney´s surreptitious taping would be viewed as "fair and honorable."
With specific reference to the undisclosed taping of a client, Opinion 2003-02 described the conceivable ethically permissible circumstances as "few and far between."
Other jurisdictions came to different conclusions, often involving the same general issue, but different fact patterns. The Washington D.C. Bar Association (in Ethics Opinion 229) analyzed the propriety of a lawyer secretly taping a meeting with a client and representatives of a federal agency who are investigating the client. The opinion concluded that such surreptitious recording was not unethical, as long as the lawyer "makes no affirmative misrepresentations about the taping."
The Washington D.C. Bar cited opinions from several other states that had concluded it was not unethical for lawyers to secretly record their clients. They note that the Idaho bar opined that although lawyers may not secretly record telephone conversations with other lawyers or potential witnesses, they could record conversations with their own clients because these conversations were confidential. (citing Idaho Op. No. 130 (May 10, 1989))
They also cited the Utah Bar, which held that lawyers may surreptitiously record electronically or mechanically communications not only with clients, but also with witnesses or other lawyers. (citing Utah Op. No.90, undated)
Recording Practices and Practical Considerations
One question that has been asked in connection with the revelation of the Cohen-Trump tapes, is why would a lawyer want to record a client? The Texas Center for Legal Ethics tackled that question in an ethics opinion in 2006. In Opinion 575, after citing other ethics opinions on the issue, they cited what they consider to be legitimate reasons a lawyer might choose to record a telephone call with a client or third party. These include "to aid memory and keep an accurate record, to gather information from potential witnesses, and to protect the lawyer from false accusations."
Opinion 575 concludes that because Texas generally does not prohibit people from making undisclosed recordings of phone conversations, and many businesses in fact, with or without notice, routinely record telephone conversations on business premises, an undisclosed recording of a phone call by one of the parties to the conversation does not involve "dishonesty, fraud, deceit or misrepresentation" within the meaning of the applicable ethics rule.
When What Might Not Be Unethical is Still Unadvisable
The American Bar Association (ABA) has weighed in on the lawyer-taping-client issue as well. In Formal Opinion 01-422 (2001), they state, "A lawyer who electronically records a conversation without the knowledge of the other party or parties to the conversation does not necessarily violate the Model Rules." (emphasis added)
Diverging somewhat from ethics opinions from several states on the question as to whether a lawyer can secretly record a conversation with a client, the opinion states, "The Committee is divided as to whether a lawyer may record a client-lawyer conversation without the knowledge of the client, but agrees that it is inadvisable to do so."
This reflects the reality that lawyers have a higher calling than merely following ethical rules — which are minimum standards. Merely because a lawyer might not be subject to discipline for certain behavior does not mean that they should engage. Professionalism calls lawyers to aspire to deliver a higher level of client care than is legally and ethically required.
Lawyers should keep in mind that a relationship between a lawyer and a client is founded on trust. The lawyer-client relationship is also characterized by a duty of loyalty, and a client´s expectation that they can speak freely.
Lawyers are wise to consider all aspects of their behavior that might raise ethical issues through the lens of established laws, rules, ethics opinions, practical considerations, as well as a higher duty and commitment to professionalism.
Wendy Patrick is a California prosecutor and former Chair of the California State Bar Ethics Committee (Committee on Professional Responsibility and Conduct), and former Chair of the San Diego Bar Association Ethics Committee where she served a six-year term. She writes and lectures on legal ethics around the country on a regular basis. The views represented in this article are her own, and not attributable to her employer.
Wendy L. Patrick is a career prosecutor, named the Ronald M. George Public Lawyer of the Year, and recognized by her peers as one of the Top Ten criminal attorneys in San Diego by the San Diego Daily Transcript. She has completed over 150 trials ranging from human trafficking, to domestic violence, to first-degree murder. She is President of the Association of Threat Assessment Professionals San Diego Chapter and an ATAP Certified Threat Manager. Dr. Patrick is a frequent media commentator with over 3,00 appearances including CNN, Fox News Channel, Newsmax, and many others. She is author of "Red Flags" (St. Martin´s Press), and co-author of the revised version of the New York Times bestseller "Reading People" (Random House). On a personal note, Dr. Patrick holds a purple belt in Shorin-Ryu karate, is a concert violinist with the La Jolla Symphony, and plays the electric violin with a rock band. To read more of her reports — Click Here Now.
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