The Arizona Supreme Court has rejected the Attorney Ethics Advisory Committee’s attempt to upend this state’s decades-long position that surreptitious recording by lawyers is per se unethical.
The Court denied the AEAC’s proposed EO-20-0002 on April 13, directing that it not be posted or distributed.
This is the first time since the Rule 42.1, Ariz. R. Sup. Ct., procedure for issuing ethics opinions went into effect on January 1, 2019, that the Court flat-out rejected a proposed AEAC opinion. The Court once earlier directed the AEAC to revise a proposed opinion (proposed EO-19-0002, remanded to the AEAC for further work) but the Court did not give the AEAC that direction with proposed EO-20-0002.
The AEAC’s proposed opinion would have allowed an Arizona lawyer to secretly record a conversation or phone call if the lawyer were a party to the conversation or got permission from one party to the conversation in advance.
That conduct is legal, because Arizona is a so-called one-party consent state. But since at least 1965, State Bar of Arizona ethics opinions have concluded that it is, in general, unethical for lawyers to secretly record conversations.
Surreptitiously recording opposing counsel is deemed to involve an element of deceit and misrepresentation, thus violating ER 8.4(c) (“It is professional misconduct for a lawyer to … engage in conduct involving dishonesty, fraud, deceit or misrepresentation”). State Bar of Arizona Ethics Op. 95-03 (1995) said that
[d]espite the proliferation of modern recording devices and advancements in technology, it still is not common to record ordinary-course conversations between legal professionals. Attorneys do not expect that their opponent is recording a telephone conversation. On the contrary, attorneys normally expect that such recording is not occurring. The deceit and misrepresentation lies in the recording attorney’s failure to disclose the fact that he or she is recording and preserving the statements of the other attorney for some purpose beyond the conversation.
Surreptitiously recording third parties is more complicated. SBA Op. 95-03 emphasized the general prohibition against surreptitious recording, but recounted exceptions created by State Bar of Arizona Op. 75-13 (1975), including that opinion’s conclusion that “[s]ecret recordings will be warranted only in rare cases where the attorney has first satisfied himself that there are compelling facts and circumstances justifying the use of a secret recording.”
The AEAC’s proposed opinion concisely outlined the somewhat confusing exceptions that the old State Bar opinions had created:
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When the recording is of a statement that is itself a crime (such as a bribe or obscene phone call). [SBA Op. 75-13]
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To protect the lawyer or client against perjured testimony, but not merely to record evidence of inconsistent statements or for other impeachment purposes. [SBA Op. 75-13]
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When speaking with an informant or the subject of an investigation “as a matter of self-protection.” [SBA Op. 75-13]
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For criminal defense attorneys, when conducting an investigation. [SBA Op. 90-02]
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By the lawyer’s client, with advice from the lawyer regarding the legal right to do so. [SBA Op. 00-04]
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When authorized by statute, court rule, or court order. [SBA Op. 75-13]
Against this backdrop of non-binding State Bar opinions, the Supreme Court almost four decades ago weighed into the issue in a reported discipline case. In In re Wetzel, 143 Ariz. 34 (1984), the Court concluded that the lawyer had violated the Code of Professional Responsibility (the rules in effect prior to the Rules of Professional Conduct) by surreptitiously recording other lawyers as well as a State Bar investigator. The lawyer had claimed he recorded the conversations in compliance with SBA Op. 75-13 because he was trying to “protect” himself from “liars.”
The Court rejected his claim and concluded he had violated the Code provision that was the equivalent of current ER 8.4(c) as well as Code provisions that prohibited conduct that adversely reflected on a lawyer’s fitness to practice law and knowingly engaging in other illegal or unethical conduct. The Court also inexplicably stated that the lawyer had “violated” the non-binding, advisory Op. 75-13.
What do other jurisdictions do? Some jurisdictions, and the American Bar Association, say surreptitiously recording is not per se unethical. ABA Formal Op. 01-422 (June 24, 2001) concluded if the law of the jurisdiction where the record occurs allows non-consensual recording, “a lawyer does not violate the Model Rules merely by recording a conversation without the consent of the other parties to the conversation.”
The 2001 ABA opinion reversed a 1974 opinion that had imposed a “broad prescription” on surreptitious recording.
SBA Op. 95-03 – the 1995 opinion that concluded that surreptitiously recording opposing counsel involves an element of deceit and misrepresentation – had cited the 1974 ABA opinion in support. The AEAC’s proposed opinion noted the ABA’s change of position to support its attempt to overturn the no-surreptitious-recording ban.
So, what does the Court’s action rejecting the AEAC’s proposed opinion mean for Arizona lawyers?
If this had been a petition for review of a Court of Appeals decision, denying the petition would mean that the lower court decision stands.
By rejecting the AEAC’s proposed opinion, however, what “authority” is the Court leaving in place? Wetzel, ER 8.4(c), and rules such as ER 4.4, which deals with respect for rights of others.
What about those old State Bar opinions? In general, State Bar opinions should not be considered “authority” because they were explicitly advisory only and not binding in any way. However, the Court in Wetzel seemed to implicitly adopt SBA Op. 75-13 and its exceptions to the non-surreptitious-recording ban, by concluding that the lawyer had “violated” that opinion.
Clearly, by rejecting the AEAC’s proposed opinion, the Court did not want to open the door to giving Arizona lawyers blanket authority to secretly record a conversation or phone call if the lawyer were a party to the conversation or got permission from one party to the conversation in advance.
If faced with this issue, Arizona lawyers always should start with the basic touchstone – still in place after all these years – that secretly recording someone else is inherently deceitful even though doing so may be legal.
The solution is simple, for most lawyers. Because Arizona lawyers can’t secretly record conversations, they should disclose to other participants to the conversation that they plan to record it. If anyone doesn’t want to participate with that condition, then the conversation shouldn’t be recorded, or the objecting party shouldn’t participate.