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The Criminal Law Exception


With regard to surreptitious recordings, criminal law materially differs from civil law for two reasons. First, the practice of criminal law regularly implicates fundamental constitutional rights that generally are absent from the everyday practice of civil law. Second, surreptitious recordings are and have long been commonplace in criminal law, where conversations with witnesses, subjects, targets, law enforcement officers and others often are recorded surreptitiously in an effort to gather evidence for trial. See People v. Velasquez, 641 P.2d 943, 949 (Colo. 1982). Surreptitious recordings are a powerful tool for both law enforcement and defense counsel. Not surprisingly, courts have long sanctioned surreptitious recording as an appropriate, effective means of gathering evidence in the criminal arena. See People v. Morley, 725 P.2d 510, 515 (Colo. 1986) ("while the undercover operation was itself built on deceit [and surreptitious recordings], governmental activity in the pursuit of crime ‘is not confined to behavior suitable for the drawing room’") (quoting United States v. Murphy, 768 F.2d 1518, 1529 (7th Cir. 1985)). This is because, as the Supreme Court has recognized for more than forty years, the United States Constitution offers no protection for "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." Hoffa v. United States, 385 U.S. 293, 302 (1966) (quoting Lopez v. United States, 373 U.S. 427, 465 (1963) (Brennan, J., dissenting)). Any analysis of the ethical propriety of surreptitious recording in the criminal context must include a careful consideration of the implications for both the defense and prosecution, and, ultimately, of the constitutional rights of the defendant.

The Committee further recognizes that surreptitious recording as a method to gather evidence in criminal matters will continue regardless of whether attorneys may ethically participate in such recording. In other words, investigative agents will act independently in surreptitiously recording conversations for the prosecution or defense, regardless of whether attorneys have a role in the process. An absolute prohibition against attorney involvement simply would remove attorneys from the activity, but would not stop the activity itself. The absence of attorney involvement presents its own risks in light of the constitutional implications of surreptitious recordings. The Committee believes that without the input of lawyers, investigators lacking formal legal training might surreptitiously record conversations under circumstances that could be unconstitutional or otherwise unlawful. The Committee concludes that it is preferable to promote substantive involvement of attorneys, rather than to create an ethical bar to such participation.

Therefore, based on the historical and court-approved practice of surreptitious recording in criminal matters, and to encourage attorney oversight of such recording, the Committee draws a bright-line distinction between criminal and civil law and adopts the reasoning set forth in ABA 422 for the criminal law setting. The Committee’s approach also finds support in court and ethics opinions in other states.

In the opinion of the Committee, an attorney may surreptitiously record, and may direct a third party to surreptitiously record conversations or statements for the purpose of gathering admissible evidence in a criminal matter. By way of example, the Committee identifies three common situations in which an attorney may actively participate in surreptitiously recording a conversation in a criminal matter without violating his or her ethical obligations:

A prosecutor or criminal defense attorney may legally advise investigative agents to surreptitiously record conversations for the purpose of gathering admissible evidence, or to participate in the execution of a court-issued wire-tap or other order permitting surreptitious recording. For example, a prosecutor may direct a law enforcement officer or government informant to surreptitiously record a conversation during a drug deal.
A prosecutor or criminal defense attorney may counsel his or her client to surreptitiously record a conversation for the purpose of gathering admissible evidence. For example, this might occur when a defense attorney has determined that it is in his or her client’s best interest to cooperate with the prosecution as a government informant.
An attorney acting as an investigative agent, with no role as an attorney on the case, may surreptitiously record a conversation for the purpose of gathering admissible evidence. This situation might arise when a law enforcement officer also is a licensed attorney, or when the attorney himself or herself is the subject or target of an investigation. However, an attorney who surreptitiously records a conversation as an investigative agent may not thereafter act as an attorney in the case.

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