Ethics Opinions
Iowa Supreme Court Board of Professional Ethics and Conduct

Date of Opinion: 12/15/1982

Opinion Number: 83-16

Title: RECORDING CONVERSATIONS NOT PERMITTED WITHOUT CONSENT

Opinion: Lawyers have more and more begun to take advantage of new technologies including tape recording of conversations. The Committee on Professional Ethics & Conduct of The Iowa State Bar Association has adopted Formal Opinion 337 of the American Bar Association Committee on Ethics and Professional Responsibility. For the information of the members of the Bar, that opinion is printed here below:

With certain exceptions spelled out in this opinion, no lawyer should record any conversation whether by tapes or other electronic device, without the consent or prior knowledge of all parties to the conversation.

Code of Professional Responsibility: Canons 1, 4, 7 and 9; Disciplinary Rule 1-102(A)(4); and Ethical Considerations 1-5, 4-4, 4-5, 7-1, 9-2 and 9-6.

Recent technical progress in the design and manufacture of sophisticated electronic recording equipment and revelations of the extent to which such equipment has been used in government office and elsewhere make it desirable to issue a Formal Opinion as to the ethical questions involved.

Attorneys may desire to record conversations to which the following three classes of persons may be party:

(a) Clients;

(b) Other attorneys with whom they deal;

(c) The public, including but not limited to, witnesses and public officials.

These would include conversations in which the attorney was not himself a party.

No prior Formal Opinion has been issued which deals directly with the problem. Informal Opinions have addressed the issue only in part.

Formal Opinion 150, issued in 1936, held that a prosecuting attorney could not ethically use a recording of conversation between defense attorney and his client in evidence in the prosecution of the defendant even though such recording was legally admissible at the time of the opinion. The Committee based its holding in part on the duty of attorneys in public employ to avoid the appearance of impropriety. The opinion also stresses the nature of the intercepted conversation (between the accused and his counsel) as to which the attorney and client were entitled to confidentiality.

Informal Opinion No. C-480, issued in 1961, requires disclosure to the court and opposing counsel before using a recording device in court.

Informal Opinion No. 1008, issued in 1967, holds that a lawyer may not make a recording of a conversation with a client without previous disclosure.

Informal Opinion 1009, issued on the same day, makes a similar ruling as to conversation with an attorney for the other party. This opinion cites Opinion 201 of the Michigan Ethics Committee, Henry S. Drinker Legal Ethics, page 197, and New York City Committee, Opinions 848 and 290.

So far as clients and other attorneys are concerned, the prior Informal Opinions make the conclusion clear. Attorneys must not make recordings without the consent of these parties to the conversation.

A survey of state opinions listed in the Digest of Bar Association Ethics Opinions reveals the same pattern with only one opinion to the contrary; Texas Opinion 84, issued in November of 1953 and published without comment in 16 Texas Bar Journal 701 (1953). A recent New York State Bar Association Opinion (Opinion 328 issued 3-18-74) holds it unethical for a lawyer engaged in private practice to record conversations with any persons without their consent.

Authority as to recording by lawyers of conversations of "other persons," except for the New York Opinion just rendered, is scant, and the legal position is less clear. Federal and state laws and FCC regulations are in conflict and do not settle the ethical questions involved.

Two California bar opinions, (Los Angeles Opinion 272 and California State Bar Association Opinion 1966-5) held that because of the public policy adopted by the FCC in requiring the use of the "beep tone" in order to inform all parties that a recording is being made, and because a telephone user who violates FCC regulations may be enjoined from such practice or may have his telephone service disconnected, it would be unethical for an attorney to record a telephone conversation without the use of a warning device.

While the law is not clear or uniform as to recording by lawyers of conversations of "other persons," it is difficult to make a distinction in principle. If undisclosed recording is unethical when the party is a client or a fellow lawyer, should it not be unethical if the recorded person is a layperson? Certainly the layperson will not be likely to perceive the ground for distinction.

At least by analogy to Formal Opinion 150, secret recording by attorneys of conversations of any persons is unethical even though legal under federal law.

Present Canon 9 of the Code of Professional Responsibility, A Lawyer Should Avoid Even the Appearance of Professional Impropriety, expresses in general terms the standards of conduct expected of lawyers in their relationships with the public, with the legal system, and with the legal profession, for all attorneys.

DR 1-102(A)(4) of the Code of Professional Responsibility state that "A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." This disciplinary rule is substantially equivalent to, but somewhat broader than, Canon 22 of the former Canons of Ethics which imposed on an attorney an obligation to be candid and fair "before the court and with other lawyers." Informal Opinions C-480, 1008, and 1009 rely on Canon 22.

Canons 1,4, 7, and 9, and Ethical Considerations all clearly express axiomatic norms for attorney conduct. Each in the view of the Committee supports the conclusion that lawyers should not make recordings without consent of all parties. Ethical Consideration EC 1-5, EC 4-4, EC 4-5, EC 7-1, EC 9-2 and EC 9-6 all state in various ways the conduct to which lawyers should aspire. None would condone such conduct. The conduct proscribed in DR 1-102 (A)(4), i.e., conduct which involves dishonesty, fraud, deceit or misrepresentation in the view of the Committee clearly encompasses the making of recordings without the consent of all parties. With the exception noted in the last paragraph, the Committee concludes that no lawyer should record any conversation whether by tapes or other electronic device, without the consent or prior knowledge of all parties to the conversation.

There may be extraordinary circumstances in which the Attorney General of the United States or the principal prosecuting attorney of state or local government or law enforcement attorneys or officers acting under the direction of the Attorney General or such principal prosecuting attorneys might ethically make and use secret recordings if acting within strict statutory limitations conforming to constitutional requirements. This opinion does not address such exceptions which would necessarily require examination on a case by case basis. It should be stressed, however, that the mere fact that secret recordation in a particular instance is not illegal will not necessarily render the conduct of a public law enforcement officer in making such a recording ethical.

Footnote. 1. Federal Law. It is not a federal offense to make secret recordings of conversations without disclosure. Sections 2510-20 of the Omnibus Crime Control and Safe Streets Act of 1968 were adopted specifically for the purpose of clarifying the existing law governing the interception of wire and oral communications. Section 2511 provides:

"It shall not be unlawful under this Chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication, or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act...(or) any other injurious act." 18 U.S.C.A section 2511.

Special provision is made for the recording of privileged communications in section 2517 (4) which states:

"No otherwise privileged wire or oral communication intercepted in accordance with or in violation of the provisions of this Chapter shall lose its privileged character."

As interpreted by the Supreme Court in U.S. v. White, 401 U.S. 745 (1971) Section 2510-20 of the Omnibus Crime Control Act permits a participant in a conversation to record a conversation and to use a device for transmitting the conversation to a third party, or may consent to letting a third party use a device to overhear the conversation. The Court stated that:

"Our opinion is currently shared by Congress and the Executive Branch, Title III Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 212, 18 U.S.C. Section 2510 et seg., and the American Bar Association. Project on Standards for Criminal Justice Electronic Surveillance Section 4.1 (Approved Draft 1971)."

This statement is vulnerable in that it equates the very broad provision of Section 2510-20 with the ABA Project, Section 4.1, which pertains only to the use of electronic surveillance by law enforcement officers.

Furthermore, Section 5.11 of the ABA Project recommended that "no order should be permitted authorizing or approving the overhearing or recording of communications over a facility or in a place primarily used by licensed physicians, licensed lawyers . . . unless an additional showing as provided in Section 5.10 is made."

However, the Court in White distinguished and refused to overrule Katz v. U.S., 389 U.S. 347, which in effect required a search warrant before the F.B.I. could intercept a telephone conversation.

Since only four justices joined in the reasoning of the plurity opinion, the question cannot be considered closed so far as police cases are concerned.

2. State laws. The majority of the states follow federal law as to participant recording of conversations, but at least ten states require the consent of all parties to the recording and impose civil and criminal penalties for violation.

3. FCC Regulations. The FCC Regulations, in effect since 1948, require telephone carriers to file tariffs with the Commission to the effect that:

1. Adequate notice be given to all parties that their conversation is being recorded.

2. That such notice be given by the use of an automatic tone warning device.

3. That the tone warning device be furnished, installed and maintained by the telephone company along specified technical guidelines. 11 FCC 1033, 1050, 12 FCC 1005, 1008(1947).

These regulations are directed toward the telephone carriers, and do not make recording a criminal offense. However, the telephone companies are legally bound by the regulations which reflect the public policy adopted by the Commission concerning the tape recording of private conversations.

A carrier found in violation of the regulations is subject to a fine of $500 for each day of continued violation, and an attorney who fails to use a "beep tone" device, is subject to the discontinuance of his telephone service for violation of the telephone company's tariff. There is no evidentiary sanction against the introduction at trial of recordings obtained without the use of the "beep tone" device.

Banttaglia v. U.S., 349F.2d 556 (9th) Cir. (1965), cert. denied 382 U.S. 955 (1966).

The position of the FCC is also indicated by its issuance of an order forbidding the use by private citizens of radio devices, which must be licensed by the Commission, to overhear or record conversations unless all parties to the conversation have given the consent. 31 F.R. 3396 (1966).