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Ethics Opinion 112: Surreptitious Recording of Conversations or Statements, 07/19/03


The following Formal Opinion was written by
the Ethics Committee of the Colorado Bar Association

[Formal Ethics Opinions are issued for advisory purposes only and are not in any way binding on the Colorado Supreme Court, the Presiding Disciplinary Judge, the Attorney Regulation Committee, or the Office of Attorney Regulation Counsel and do not provide protection against disciplinary actions.]





112 SURREPTITIOUS RECORDING OF CONVERSATIONS OR STATEMENTS
Adopted July 19, 2003.




Formal Opinion 22: Recording Conversations

Effective July 19, 2003, the Colorado Bar Association Ethics Committee has withdrawn Formal Opinion 22 (adopted January 26, 1962).

Syllabus

Surreptitious recording of a conversation or statement occurs where one party to the conversation (the recording party) has consented to the recordation but at least one other party to the conversation or statement is not aware of the recording. Because surreptitious recording of conversations or statements by an attorney may involve an element of trickery or deceit, it is generally improper for an attorney to engage in surreptitious recording even if the recording is legal under state law. For the same reason, a lawyer generally may not direct or even authorize an agent to surreptitiously record conversations, and may not use the "fruit" of such improper recordings. However, where a client lawfully and independently records conversations, the lawyer is not required to advise the client to cease its recording, nor to decline to use the lawfully- and independently-obtained recording.

The Committee believes that, assuming that relevant law does not prohibit the recording, there are two categories of circumstances in which attorneys generally should be ethically permitted to engage in surreptitious recording or to direct surreptitious recording by another: (a) in connection with actual or potential criminal matters, for the purpose of gathering admissible evidence; and (b) in matters unrelated to a lawyer’s representation of a client or the practice of law, but instead related exclusively to the lawyer’s private life. The bases for the Committee’s recognition of a "criminal law exception" are the widespread historical practice of surreptitious recording in criminal matters, coupled with the Committee’s belief that attorney involvement in the process will best protect the rights of criminal defendants. The Committee recognizes a "private conduct exception" because persons dealing with a lawyer exclusively in his or her private capacity have diminished expectations of privacy in connection with those conversations; therefore, in the opinion of the Committee, purely private surreptitious recording is not ordinarily deceitful. However, the Colorado Supreme Court has not recognized either of these exceptions to the general prohibition against surreptitious recording by lawyers.

Issues

Under what circumstances, if any, may an attorney surreptitiously record or direct another to surreptitiously record an in-person or telephone conversation with another person? Do the ethics rules recognize distinctions between surreptitious recording by attorneys in civil and criminal matters? Do the rules recognize distinctions between attorneys who surreptitiously record conversations in the course of representing clients or otherwise acting in a professional capacity, versus attorneys acting in a purely private capacity?

This opinion does not address non-consensual recording, i.e., wiretapping, in which a non-party to the conversation engages in surreptitious recording. It also does not address the circumstances, if any, in which lawyers may use false pretenses to gather evidence, for example in investigating claims of housing discrimination and trademark infringement.

Existing Legal Authority

The Committee does not write on a clean slate. In its Formal Opinion 22 ("CBA 22"), originally issued on January 26, 1962, the Committee considered the broad question of whether "[a] lawyer, by means of a mechanical or electronic device, [may] record conversations with and statements by other persons." The Committee resolved the issue under the then-applicable Colorado Canons of Professional Ethics (the predecessor to the Colorado Code of Professional Responsibility (the "Colorado Code") that, in turn, preceded the Colorado Rules of Professional Conduct (the "Colorado Rules")). The Committee concluded:

One of the principal purposes of the Canons of Ethics is to increase public confidence in the legal profession. This end can be achieved only if individual members of the Bar earn a reputation as men of honor, integrity and fair dealing. Conversely, every deceptive practice and resort to artifice by an attorney must necessarily demean the Bar as a whole in addition to the particular attorney involved.

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[W]e believe that the large majority of persons would not suspect that a conversation with an attorney was being surreptitiously recorded. Moreover, one reason for an attorney intentionally not disclosing that a particular conversation or statement is being recorded may be a belief that the person whose conversation is being recorded would choose his words more carefully, or speak less freely, or not at all, if such knowledge were imparted to him.

[T]here is inherent in the undisclosed use of a recording device under these circumstances an element of deception, artifice or trickery which falls below the standard of candor and fairness which all attorneys are bound to uphold.

In 1974, the American Bar Association (the "ABA") reached a similar result in its Formal Opinion 337 ("ABA 337"), concluding that under the ABA Model Code of Professional Responsibility, with a possible exception for conduct by law enforcement officials, a lawyer may not engage in undisclosed recording of any conversation.

The Colorado Supreme Court relied on CBA 22 and ABA 337 in People v. Selby, 198 Colo. 386, 606 P.2d 45 (1979), an attorney disciplinary case, as support for the following broad statements: "A lawyer may not secretly record any conversation he has with another lawyer or person. Candor is required between attorneys and judges. Surreptitious recording suggests trickery and deceit." 606 P.2d at 47. Selby involved a criminal defense attorney who surreptitiously recorded an in-chambers conference with the trial judge and the prosecutor, then used partial quotations out of context from the surreptitiously-recorded conference, and testified falsely before the Grievance Committee concerning the circumstances of the taping. Under those circumstances, the Court ordered disbarment. See also People v. Wallin, 621 P.2d 330, 331 (Colo. 1981) (citing Selby, disciplining attorney for, inter alia, surreptitious recording of telephone conversation with witness).

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In People v. Smith, 778 P.2d 685 (Colo. 1989), the Colorado Supreme Court suspended an attorney for his involvement in undercover activities related to a criminal investigation of a former client. Acting at the request of the Colorado Bureau of Investigation, the lawyer surreptitiously recorded an in-person conversation in which the former client sold illegal drugs to the attorney. The Court cited Selby for the general rule that "[t]he undisclosed use of a recording device necessarily involves elements of deception and trickery which do not comport with the high standards of candor and fairness to which all attorneys are bound." Id. at 687. The Court also recognized the potential for a "prosecutorial exception to the general rule that the standards for prohibiting deceit, dishonesty and fraud preclude attorneys from surreptitiously recording communications with clients and others," id., but it found that potential exception inapplicable where the respondent was a private, not prosecuting, attorney: "We do not agree that the above-described policy considerations [in favor of law enforcement objectives] permit private counsel to deal dishonestly and deceitfully with clients, former clients and others. To hold otherwise would fatally undermine the foundation of trust and confidentiality that is essential to the attorney-client relationship in the context of civil as well as criminal proceedings." Id. The Colorado Supreme Court cited neither CBA 22 nor ABA 337 in Smith. See also Sequa Corp. v. Lititech, Inc., 807 F. Supp. 653, 663 (D. Colo. 1992) (in dictum, recognizing existence of "‘prosecuting attorney’ exception," but limiting it to law enforcement authorities, not private attorneys).


CBA 22 relied on Canon 22 of the old Colorado Canons for its conclusion that surreptitious recording is inherently unethical. That canon stated that a lawyer’s conduct "should be characterized by candor and fairness." ABA 337, Selby, Wallin and Smith relied on DR 1-102 of the ABA Model Code and the Colorado Code, which prohibits a lawyer from engaging "in conduct involving dishonesty, fraud, deceit, or misrepresentation," and "any other conduct that adversely reflects on his fitness to practice law." ABA 337; Smith, 778 P.2d at 686-87; Wallin, 621 P.2d at 331; Selby, 606 P.2d at 46.

The Colorado Rules took effect on January 1, 1993. Colorado Rule 8.4(c) maintains the prohibition against "conduct involving dishonesty, fraud, deceit or misrepresentation." Colorado Rule 4.4 addresses "respect for rights of third persons," and proscribes "means [of representation of a client] that have no substantial purpose other than to embarrass, delay or burden a third person," and "methods of obtaining evidence that violate the legal rights of such a person." Colorado Rule 4.1 prohibits making false or misleading statements of facts to third persons, but does not require disclosure of material facts to third persons unless disclosure is necessary to avoid assisting a client in a criminal or fraudulent act. No published Colorado decision has considered the issue of surreptitious recording under the Colorado Rules.

On June 24, 2001, the ABA issued its Formal Opinion 01-422 ("ABA 422"), which abandoned ABA 337’s general prohibition on surreptitious recording of conversations by attorneys. In its place, ABA 422 recognized a general rule that, where state law permits surreptitious recording of conversations, a lawyer may do so without violating the ABA Model Rules. However, ABA 422 further concluded that a lawyer may not misrepresent that the conversation is not being recorded and that the surreptitious recording of conversations with clients is, at the least, inadvisable. ABA 422 relied on multiple considerations, including the fact that surreptitious recording of conversations is now a more widespread, accepted and expected practice than it was in 1974 (when ABA 337 was issued); hence, ABA 422 concluded that it should no longer be treated as inherently deceitful. The opinion further identified the numerous exceptions that had developed to the general rule against surreptitious recording as stated in ABA 337; the opinion concluded that a better approach would be to substitute a general rule permitting such conduct except "where it is accompanied by other circumstances that make it unethical." Finally, to support that conclusion, ABA 422 relied on differences between the Model Rules and the predecessor Model Code: the Model Rules do not include the prohibition on "even the appearance of impropriety" that had appeared in the Model Code, and Model Rule 4.4 directly addresses the circumstances under which a lawyer may gather evidence from third parties, in terms that are broad enough to encompass surreptitious recording. Based on all of those factors, ABA 422 concluded that a general prohibition of surreptitious taping is no longer appropriate.



Analysis

Surreptitious Recording Is Generally Deceitful And, Therefore, Prohibited
The Committee believes that the reasoning of CBA 22 remains sound, i.e., that despite advances in technology and reduced expectations of privacy, "the large majority of persons would not suspect that a conversation with an attorney was being surreptitiously recorded," and, therefore, that "there is inherent in the undisclosed use of a recording device . . . an element of deception, artifice or trickery which falls below the standard of candor and fairness which all attorneys are bound to uphold." Canon 22, which was the basis for CBA 22, required lawyer conduct to be "characterized by candor and fairness." Colorado Rule 8.4(c), like prior DR-1-102, prohibits "conduct involving dishonesty, fraud, deceit or misrepresentation." As a result, for the same reason that CBA 22 and the Colorado Supreme Court concluded that it is improper for an attorney to surreptitiously record conversations or statements, the Committee reaches the conclusion under the Colorado Rules that, generally, a lawyer may not surreptitiously record conversations with a third person.

For the same reasons, it is also generally improper for an attorney to direct or even authorize another, such as an investigator or legal assistant, to record conversations surreptitiously. See Colo. RPC 5.3 (lawyer may not direct or ratify conduct of nonlawyer who is employed or retained by or associated with the lawyer if that conduct would violate the Colorado Rules); Colo. RPC 8.4(a) (it is misconduct for lawyer to violate rules through the act of another); e.g., CBA Ethics Comm. Abstract 98/99-05 (where private investigator retained by an attorney surreptitiously recorded a witness interview without the lawyer’s prior knowledge or approval, the attorney should not listen to or use the tape without the witness’ permission). On the other hand, the general prohibition applicable to a lawyer does not preclude a client or third party acting on the client’s behalf from independently engaging in surreptitious recording. For example, if a client has recorded conversations with others before hiring a lawyer, the lawyer should not be required to advise the client to cease recording conversations and should be able to use those recordings; an opposite result would limit the rights the client otherwise would have simply because the client hired a lawyer. However, if the lawyer learns facts indicating that the client’s past recording was improper under the law, the lawyer has a duty not to use the unlawful recording. See Colo. RPC 1.2(d) (lawyer may not assist or counsel client to engage in fraudulent conduct); Ariz. Op. 88-08 at 8 (lawyer was barred from using client’s secret tape recording, made during deposition break, of conversation between opposing counsel and his client; permitting use of the tape would "come too close to assisting the client in the underlying improper conduct," in violation of Arizona’s identical version of Rule 1.2(d)). If a client asks the lawyer if prospective recording by the client would be permissible, the lawyer should be permitted to advise the client of the legal (as distinguished from ethical) parameters that apply to surreptitious recording, and then to leave the decision to the client.

The Committee Believes That There Should Be Limited And Discrete Exceptions To The General Rule Against Surreptitious Recording
The prohibition articulated in CBA 22 is broad and absolute: "It is improper for an attorney to record by means of a mechanical or electronic device conversations or statements without disclosing that the conversations or statements are being recorded." In the view of the current Committee, CBA 22 stated the prohibition too broadly. The Committee identifies two circumstances in which attorneys generally should be ethically permitted to engage in surreptitious recording or to direct surreptitious recording by another: (a) in connection with actual or potential criminal matters; and (b) in matters unrelated to a lawyer’s representation of a client or the practice of law, but instead related exclusively to the lawyer’s private life.

The Committee recognizes that the Colorado Supreme Court has yet to recognize either of these exceptions to the general rule against surreptitious recording, and that the Committee’s endorsement of the exceptions arguably is inconsistent with the Court’s decisions in Selby and Smith. As a result, attorneys should exercise particular care in relying on this ethics opinion, which, like all CBA ethics opinions, is advisory only.

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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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The criminal law exception that the Committee recognizes is not unlimited. A prosecutor or criminal defense attorney may not surreptitiously record conversations where the law prohibits such recording. Nor may a prosecutor or criminal defense attorney participate in surreptitious recordings, either himself or herself or through others, where such conversations are for purposes other than gathering admissible evidence. For example, conversations among attorneys or pro se parties concerning trial preparation, plea negotiations, or proffers are not for the purposes of gathering admissible evidence, and an attorney therefore could not ethically record such conversations surreptitiously.

The Private Conduct Exception
Colorado Rule 8.4 applies to a lawyer’s conduct both in the representation of clients and in the lawyer’s private life. Lawyers may be subject to discipline under that rule for conduct arising in their private lives, outside of an attorney-client relationship. See, e.g., In re Hickox, 57 P.3d 403, 405 (Colo. 2002) (disturbing the peace, assault, and domestic violence); People v. Reaves, 943 P.2d 460 (Colo. 1997) (driving while impaired, harassment, and disorderly conduct); People v. Nelson, 941 P.2d 922 (Colo. 1997) (third-degree assault); People v. McGuire, 935 P.2d 22, 24 (Colo. 1997) (disturbing the peace and damaging private property); see generally Patrick O’Rourke, Discipline Against Lawyers for Conduct Outside the Practice of Law, 32 The Colorado Lawyer 75, 76-78 (April 2003). Specifically, the ban under Colorado Rule 8.4(c) on conduct involving dishonesty, deceit, fraud or misrepresentation applies to both professional and private activities. See, e.g., People v. Rishel, 50 P.3d 938, 942 (Colo. O.P.D.J.) (attorney disbarred for converting season-ticket-pool money); but see David B. Isbell and Lucantino N. Salvi, Ethical Responsibility of Lawyers for Deception by Undercover Investigators and Discrimination Testers: An Analysis of the Provisions Prohibiting Misrepresentation Under the Model Rules of Professional Conduct, 8 Georgetown J. Legal Ethics 791, 816 (1995) (acknowledging that Model Rule 8.4(c) applies regardless of whether attorney is acting in professional or private capacity, but arguing that rule applies to private conduct only when it is so grave as to call into question the lawyer’s fitness to practice law).

The Committee has found no controlling law in Colorado as to whether legally but surreptitiously recording a conversation in one’s private capacity constitutes dishonesty, fraud, deceit or misrepresentation. There is authority from outside Colorado that permits surreptitious recording by a lawyer acting as a private citizen rather than in a professional capacity. See, e.g., ABA 422; In re Hunter Studios, Inc., 164 B.R. 431, 439 (Bankr. E.D.N.Y. 1994) (conclusion that a lawyer may not surreptitiously record conversations does not apply in the context of an attorney acting in a purely private capacity: "The unfavorable characteristics of the action when taken by an attorney engaged in the representation of someone other than her or himself, are not present when taken by a layperson or non-engaged attorney. The non-engaged attorney should have the same rights as the layperson . . ."); Ariz. Op. 75-13 (June 11, 1975) (attorney may document threats, obscene calls, etc.); cf., New York City Ethics Op. 2003-2 (2003) (lawyer may surreptitiously tape a conversation "if the lawyer has a reasonable basis for concluding that disclosure of the taping would significantly impair pursuit of a generally accepted societal good," including to preserve evidence of threats made against the lawyer or a client).

The Committee concludes that purely private surreptitious recording is not necessarily deceitful. In the opinion of the Committee, the logic underlying CBA 22, ABA 337, Selby, and Smith is that third persons expect lawyers not to record conversations – and, thus, it is inherently deceitful to surreptitiously record conversations – when those third parties are speaking with lawyers in their professional capacity as lawyers. The Committee notes that Canon 22, on which the Committee principally relied when it issued CBA 22, addressed only "[t]he conduct of the lawyer before the Court and with other lawyers" (emphasis added), rather than all of a lawyer’s conduct, including his or her purely private conduct. See also Smith, 778 P.2d at 687 (permitting surreptitious recording of conversations with former client "would fatally undermine the foundation of trust and confidentiality that is essential to the attorney-client relationship . . ."); Selby, 606 P.2d at 47 ("[A] lawyer has a very special responsibility for candor and fairness in all of his dealings with a court. Absent mutual trust and confidence between a judge and a lawyer – an officer of the court – the judicial process will be impeded and the administration of justice frustrated.").

When the surreptitiously-recorded conversation does not relate to the representation of clients, there is no heightened expectation of privacy or "honor, integrity and fair dealing"; indeed, the third person might not even know that he or she is communicating with an attorney. For these reasons, the Committee believes that a lawyer’s recording of a private conversation is not necessarily deceitful. Therefore, for example, if a lawyer is subject to harassing telephone calls or threats of harm having no relationship to his or her representation of clients or professional activities, Rule 8.4(c) should not apply to prohibit that activity.

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Year 1989 Ethics Opinions
Formal Opinion 1989-3 Formal Opinion 1989-2 Formal Opinion 1989-1

THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

FORMAL OPINION 1989-1

COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS

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March 13, 1989

ACTION: Formal Opinion

re: Recordings.

OPINION:

A matrimonial action is pending between a husband and wife who reside together. Each of the spouses is represented by separate counsel. We have been asked to address the ethical obligations of the lawyer for one of the spouses when his client intercepts certain communications between or involving the other spouse and that spouse's counsel.

In particular, three questions are posed: (1) whether the inquirer would violate any ethical obligation if he advised his client to intercept and copy, without consent, written communications between the other spouse and the latter's counsel; (2) whether the ethical obligations are altered if the non-client spouse had first initiated the practice; and (3) assuming the client engaged in this practice without any suggestion, recommendation or initiative from the inquirer, whether any ethical constraints are imposed on the inquirer's use of such communications to advance his client's cause in the matrimonial action.

With respect to Questions 1 and 2, we assume from the facts submitted by the inquirer that the proposed advice would counsel the client intentionally to open sealed mail to or from the non-client spouse's lawyer, and that the communications are likely to be protected by the attorney-client privilege or work-product doctrine. For the purposes of Question 3, we assume that the inquiring lawyer has not learned of the interception and copying until after they have occurred.

SUMMARY OF CONCLUSIONS

This inquiry presents mixed questions of law and professional ethics. The underlying legal questions are whether the actions of the client-spouse constitute a civil or criminal wrong and whether a lawyer's support of such behavior is similarly a violation of applicable law (Question 1 and Question 2). An additional question raised is whether the communications (and any evidence derived therefrom) are admissible in the litigation. These questions, which can be resolved only by a court of law, are not within the scope of this Committee's jurisdiction, and no opinion is expressed as to their resolution.

As a matter of legal ethics, however, the Committee concludes that it would be improper for a lawyer to counsel his client to intercept and copy communications to or from the other spouse's lawyer. Such advice would promote conduct that demonstrates a lack of candor and fairness towards the opposing lawyer and the other spouse. The Code of Professional Responsibility, as well as prior opinions of this Committee, forbid a lawyer from engaging in such tactics.

The mere fact that the non-client spouse initiated the practice does not alter the Committee's conclusion. The other spouse's initiation of the practice is not a justification for retaliation. To countenance retaliation would serve only to debase the legal profession.

Where the inquirer has not suggested or initiated the practice in any way, the question to be resolved is whether any ethical obligations or prohibitions constrain the inquiring attorney's use of the copied communications. The Committee concludes that, regardless of whether the lawyer counseled the client to engage in this conduct or even knew that the client was so engaged, it would be unethical for the lawyer to use any intercepted communications to advance the client's position unless and until the lawyer (i) has disclosed to adversary counsel the fact that the documents have come into the lawyer's possession and (ii) has provided copies to adversary counsel. Even if the lawyer does not intend to make affirmative use of the documents, the lawyer must promptly disclose his possession of the documents and return them or copies of them. Because the intercepted communications were received by the lawyer in the course of the professional relationship, however, the lawyer may not make such disclosure without the consent of the client. DR 4-101(B). If the client refuses to permit disclosure or the return of the documents to the adversary, the lawyer must withdraw from the representation. DR 2-110(B).

DISCUSSION

I

As to the first question, we assume, as noted above, that the proposed advice counsels that the client intentionally copy communications to or from the non-client spouse's lawyer, communications that are likely to be protected by the attorney-client privilege or work-product doctrine.

Under these stated assumptions, a lawyer who advises a client to open such mail engages in conduct that demonstrates a lack of consideration, candor and fairness to adversary counsel and the other person. See DR 7-102(A)(7); EC 7-10. Without expressing an opinion as to whether the client's conduct would constitute an actionable civil or criminal wrong, we simply note that if such conduct is illegal, it is equally unethical for a lawyer to counsel that course of action. DR 7-102(A)(7).

Regardless of the ultimate determination of the act's legality, advising a client to intercept communications between another person and that person's lawyer displays a lack of consideration, candor and fairness with respect to the private and confidential nature of the attorney-client relationship. Unlike more explicit ethical prohibitions, "concepts like candor and fairness take their content from a host of other sources which . . . reflect a consensus of the bar's or society's judgment." N.Y. City 80-95. To counsel a client to open mail between the opposing party and the latter's attorney in the course of litigation is inconsistent with these concepts because it involves a deceitful invasion of privacy and an unjustifiable intrusion into attorney-client communications. Our concern with candor and fairness is also heightened here because the initiator of the practice is aware that the source or addressee of the communications is an adversary lawyer -- the very person who has been relied on to preserve confidences and secrets of a client. See DR 4-101(A), (B). Furthermore, counseling the opening of mail implicates Code provisions prohibiting deceitful conduct by lawyers. See DR 1-102(A)(4); see also DR 1-102(A)(3), (5); N.Y. City 80-95.

In analogous situations, this Committee has condemned a lawyer's participation in surreptitious recording of communications involving opposing lawyers and their clients. In N.Y. City 683 (1945), a client, in order to assist his daughter in obtaining evidence of her husband's infidelity, proposed to have a dictaphone or dictagraph installed in the husband's residence. The Committee unequivocally stated that:

it would be inconsistent with the honor and dignity of the profession . . . for a lawyer to facilitate the proposed arrangements, either by his own direct participation or by advice to his client.

We condemned the proposed surreptitious recording under both Canon 29, requiring a lawyer "to uphold the honor and to maintain the dignity of the profession," and Canon 32.

In N.Y. City 836 (1958), we were asked to determine whether it would be ethical for a lawyer to tape-record telephone conversations with another lawyer without first obtaining that lawyer's consent. We concluded that recording opposing counsel's statements would violate a lawyer's obligation to treat other lawyers with "candor and fairness." See also N.Y. City 813 (1956) (lawyer's use of concealed tape-recorder not consistent with duty of candor and fairness); N.Y. City 624 (1942) (lawyer's secret recording of settlement negotiations where adversary made vital admissions was "clearly unethical"); ABA Inf. Op. 1320 (1975) (lawyer's conduct in recording or causing to be recorded colloquy between investigator and sales clerk held unethical); see generally ABA Op. 337 (1974).

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More recently, this Committee was asked to consider whether the Code permits a defense lawyer in a criminal case secretly to record conversations with witnesses. We concluded that the practice was permissible in the exceptional circumstances there involved, but emphasized that "[w]e continue to view as unethical secret recordings of lawyers or clients in any context, and secret recordings of any persons in civil or commercial contexts." N.Y. City 80-95.

The surreptitious recording of an adversary's communications bears strong similarity to the opening and copying of mail between lawyer and client. Moreover, several of the cited opinions arose from situations where both lawyers were actually conversing at the time of the recording. This inquiry presents a stronger case for condemning the practice, for the communication medium between lawyer and client involved here necessarily was intended to exclude the inquirer and the client-spouse; the inquirer's adversary was entitled to expect that his communications would remain private vis-a-vis the inquirer and the inquirer's client.

In addition, we note that a lawyer is obligated to conform his behavior so as to promote "public confidence in the integrity . . . of the legal system. . . ." EC 9-2. The public would have less confidence in a legal system that sanctioned the interception and copying of communications between an opposing party and its counsel.

II

The inquirer next asks whether the Committee's conclusion would be different if the non-client spouse had initiated the practice of opening such communications and the client-spouse merely did the same in retaliation. Our communications and the client-spouse merely did the same in retaliation. Our conclusion would remain the same. The Code's prohibitions against engaging in dishonest or deceitful conduct (DR 1-102(A)(4)) or assisting a client in conduct a lawyer knows to be fraudulent (DR 7-102(A)(7)) are not conditioned upon the blamelessness of the conduct of the opposing party or counsel. Therefore, the other spouse's initiation is not a justification, and we cannot endorse the proposed form of self-help. Because a matrimonial action is pending, however, the client-spouse may seek relief from the court. If the non-client spouse's lawyer counseled or otherwise participated in the interception, that lawyer's conduct should be brought to the attention of the appropriate Departmental Disciplinary Committee. DR 1-103(A).

III

The third question posed is whether the inquirer is under any ethical obligations or constraints in using the intercepted and copied communications to advance his client's cause in the matrimonial action, assuming the interception and copying occurred without any suggestion or other participation, or even knowledge, by the inquirer. n1 The Committee concludes that the inquirer may not offer the intercepted communications in evidence, quote from them in court papers or otherwise make affirmative use of them in the matrimonial action unless and until the inquirer has disclosed to his adversary the fact that the documents have come into the inquirer's possession and has returned the documents (or copies) to the adversary (see Section III(A) below). The Committee further concludes that even if the inquirer does not propose to make affirmative use of the intercepted documents, the inquirer has an obligation to disclose his possession of the documents and to return them or copies of them (see Section III(B) below). Finally, the Committee concludes that the foregoing disclosure obligation is contingent upon the consent of the inquirer's client; if that consent is withheld, the inquirer must withdraw from the representation (see Section III(C) below).

n1 If the inquirer had known that his client intended to intercept and copy communications between the other spouse and the latter's counsel, this Committee believes that the inquirer would have been under an obligation to remonstrate with his client not to engage in such conduct. Cf. DR 7-102(B)(1). The Committee's views set forth in Section III of this opinion apply whether or not the inquirer has advance notice of his client's interception.

A. Any proposed use of the intercepted documents by the inquirer may implicate the following questions of law. First, DR 7-106(C)(1) prohibits lawyers from making statements not supported by admissible evidence, which would necessarily include knowing violations of the rules of evidence. See also EC 7-25. As noted above, this Committee can express no opinion regarding the effect that the method of obtaining the documents may have on their admissibility. Second, DR 7-102(A)(7) prohibits a lawyer from counseling or assisting a client in conduct that the lawyer knows to be unlawful. Whether the interception of the documents under the circumstances was unlawful is, as noted above, also a question of law upon which this Committee cannot opine. However, whether or not the interception was unlawful, it plainly involved an element of dishonesty and deceit, and "irrespective of whether the lawyer was himself a party to this act of wrongdoing, he should not help his client take advantage of such wrongdoing by embracing it and using it to promote the client's cause." N.Y. City 832; see also DR 1-102(A)(4) and (5).

The Committee is mindful of the fact that while a lawyer may not engage in conduct involving dishonesty or deceit (DR 1-102(A)(4)) or conduct that is prejudicial to the administration of justice (DR 1-102(A)(5)), the lawyer does at the same time have an obligation to represent a client zealously within the bounds of the law, Canon 7; EC 7-1, and that a court might hold that any wrongdoing involved in obtaining the documents would not necessarily render them inadmissible. See, e.g., Sackler v. Sackler, 16 A.D. 2d 423 (2d Dept. 1962), aff'd, 15 N.Y. 2d 40 (1964). In view of these considerations, the Committee believes that if the inquirer discloses to his adversary that the inquirer has the documents and the circumstances under which they were obtained and returns the documents or copies to the adversary, it would not be unethical for the inquirer to attempt thereafter to use the documents in support of his client's cause, for the element of deceit or dishonesty will have been exposed and the adversary will have an opportunity to seek judicial relief against use of the documents in the action.

B. Whether the inquirer must disclose (or call upon his client to disclose) his possession of the documents and return the documents or provide copies if the inquirer does not intend to make affirmative use of them in the action presents a more difficult question, but the Committee concludes that it must be answered in the affirmative. The inquirer and his client are privy to communications between the opposing party and counsel that are likely to be privileged and that, whether or not privileged, were obtained otherwise than through normal discovery procedures. Having such information gives the inquirer and his client an advantage that, however slight, they are not entitled to have, and to permit them to retain that advantage, of which the opposing party and counsel are unaware, would in the Committee's opinion be prejudicial to the administration of justice and, therefore, ethically impermissible. DR 1-102(A)(5). Moreover, the client's interception and copying of confidential communications constituted a fraud upon the other spouse, and the inquirer has an obligation under DR 7-102(B)(1) to call upon his client promptly to rectify the fraud. If the client refused to do so and if the interception were not a "secret" under DR 4-101(A), as we conclude below it is, the inquirer would then be obligated to reveal the fraud to the other spouse's counsel. Id.

C. The inquirer received the intercepted communication from his client in the course of their professional relationship, and the revelation of the client's conduct "would be embarrassing or would likely be detrimental to the client." Thus, the fact that the inquirer has obtained the documents through an unauthorized interception is a "secret" within the meaning of DR 4-101(A), which the inquirer may not disclose without the client's consent. If the client withholds that consent, then the inquirer is obligated to withdraw from the representation (with the court's permission if required by its rules), because continued employment will, the Committee has concluded, result in violation of one or more disciplinary rules. See DR 2-110(B).

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This is the html version of the file http://www.abanet.org/crimjust/policy/revisedmy048a.pdf.




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THE NEW YORK COUNTY LAWYERS’ ASSOCIATION AND AMERICAN BAR ASSOCIATION SECTION OF CRIMINAL JUSTICE REPORT TO THE HOUSE OF DELEGATESRECOMMENDATIONRESOLVED, That the American Bar Association urges all law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impractical, to audiotape the entirety of such custodial interrogations. 1 2 3 4 5 6 7 8 9 10 11




FURTHER RESOLVED, That the American Bar Association urges legislatures and/or courts to enact laws or rules of procedure requiring videotaping of the entirety of custodial interrogations of crime suspects at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impractical, to require the audiotaping of such custodial interrogations, to provide necessary funding, and to provide appropriate remedies for non-compliance. --------------------------------------------------------------------------------
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1 REPORTINTRODUCTION False confessions by suspects appear to be among the major causes of wrongful convictions within the criminal justice system. To reduce the number of convictions of innocent persons and ensure the integrity of the criminal justice process it is imperative to reduce the number of false confessions. Research indicates that about one-fourth of cases of conviction of innocent defendants have included, among other things, false confessions.1Such false confessions include a suspect’s incorrect statements of involvement in any or all facets of the crime(s) being investigated. These incorrect statements by a suspect can mislead police, prosecutors, defense attorneys, judges and juries into focusing the case on the suspect, too often resulting in an erroneous conviction. An additional negative consequence is that the focus is away from the true perpetrator of the crime, too often resulting in that perpetrator’s freedom to continue criminal activity. Recent reports of innocent defendants convicted largely because of false confession have been followed by individuals and groups calling for electronically recording interrogations. The practice of electronically recording complete custodial interrogations has been on the increase both in this country and throughout the world. Statutes requiring the recording of interrogations in their entirety have been introduced in a number of legislatures and enacted in the District of Columbia and Illinois. Police departments are increasingly adopting electronic recording of complete 1C. Ronald Huff, Wrongful Conviction: Causes and Public Policy Issues, 18 (1) (ABA) CRIMINAL JUSTICE 15 (Spring 2003). BARRY SCHECK, PETER NEUFELD & JAMES DWYER, ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION AND OTHER DISPATCHES FORM THE WRONGLY CONVICTED (2000).
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2 interrogations, and those that have done so have found the practice beneficial to law enforcement. We believe it is time the practice of videotaping complete interrogations is mandated in all state andfederal jurisdictions. 2False ConfessionsThe overarching problem at in-court determinations of the falseness of the suspect’s statements is the difficulty in recreating who said what, who did what, and what body language and facial expressions accompanied these statements and actions. While videotaping or audiotaping the interrogation does not do much to alleviate the problems at other stages of the criminal justice process, it does seem to be the best solution to the subsequent in-court determinations, as recognized by even the most conservative of researchers and analysts: “... there seems to be virtual unanimity among those who have reviewed the problemthat videotaping interrogations is an effective solution to the false confession problem.”3However unlikely it may appear that an innocent person who has not been physically coerced would confess to a crime, numerous false confessions have been documented. Various cases are collected and described in a 1997 law review commentary, False Confessions and Fundamental Fairness: The Need for Electronic Recording of Custodial Interrogations, 6 B.U. Pub. Int. L.J. 719 (1997). A 1998 article by Ofshe and Leo, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in The Age of Psychological Interrogation, 88 Journal of Criminal Law and Criminology 429 (1998), identified 34 confessions proven false through other evidence, and 18 confessions which appear false because of the lack of corroboration and the 2“Videotaping” shall encompass any electronic method of preserving an audio-visual record of the interrogation. 3Paul G. Cassell, Balanced Approaches to the False Confession Problem: A Brief Comment on Ofshe, Leo, and Alschuler, 74 DENVER UNIVERSITY LAW REVIEW 1123, 1132 (1997).
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3 presence of exonerating evidence. Many sources report other apparently false confessions. See, e.g., Scheck, Neufeld & Dwyer, ACTUALINNOCENCE(2000); the case of Corethian Bell, “Cops Urged to Tape Their Interrogations,” Chicago Tribune, January 6, 2002;4and four questionable confessions in Prince George’s County, Maryland, see, Washington Post, Feb. 1 and 12, 2002. Certain interrogation techniques, designed to elicit a true confession from a suspect who denies culpability, can have the effect of inducing a false confession. These techniques are described in detail in Ofshe and Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 Denver University Law Review 979 (1997). In essence, “interrogators manipulate the individual's analysis of his immediate situation and his perceptions of both the choices available to him, and of the consequences of each possible course of action. An interrogator's goal is to lead the suspect to conclude that confessing is rational and appropriate.” Id., at 985. An innocent individual who is convinced that he will be arrested, tried, and convicted, may rationally decide to confess if convinced that confessing may moderate punishment, terminate the interrogation or otherwise be ofbenefit. Innocent suspects can be convinced that they will be convicted by interrogators’ false assertions that there is strong evidence against them. Such false assertions are legal and constitutional.5During police interrogations, investigators try to determine what information is available to the suspect, manipulate his perception of his situation, and usually offer some form of incentive to 4After a lengthy unrecorded interrogation, Bell’s confession was videotaped. 5Police interrogation tactics can and do include intentional trickery; lying to the suspect about nonexistent evidence or incriminating statements by other suspects and witnesses; strongly suggesting known elements of the crime to the suspect; and implied promises of leniency or harshness stemming from the suspect’s decision whether or not to confess. See, generally INBAU, FRED (ed.), CRIMINAL INTERROGATION AND CONFESSIONS (Aspen)(4th ed., 2001). While not necessarily clear violations of the suspect’s legal rights, such interrogation tactics can result in false confessions. See Richard Ofshe & Richard Leo, The Decision to Confess Falsely: Rational Choice andIrrational Action, 74 DENVER UNIVERSITY LAW REVIEW 979, 1114 (1997).
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4 get a confession.6On the other end of the spectrum from positive incentives, police interrogators also may imply a wide variety of threats: “The modern equivalent to the rubber hose is the indirect threat communicated through pragmatic implication.”7Not surprisingly, one of the conclusions from the American Judicature Society’s January 2003 Conference on Wrongful Convictions of the Innocent was that prosecutorial misconduct, including suggestive, coercive, or misleading theories as well as subconscious biases, is a primary systemic cause of wrongful convictions. There are a number of categories ofindividuals who are particularly susceptible to aggressive interrogation techniques. Suspects who falsely confess to crimes and criminal activity that they didnot commit are apt to be particularly vulnerable people, such as those who are intoxicated by alcohol or other drugs or those who are overly eager to appear cooperative. The largest category of falsely confessing suspects consists of those with mental deficiencies or unusual cultural backgrounds. Additionally, juveniles are a well-recognized group who tend to be unsophisticated in dealing with police interrogation tactics, more trusting of adultauthorityfigures, and less informed about criminal law and the criminal justice process. Recent research also indicates that the race of the person beinginterrogated is correlated with eagerness to cooperate and the ability to avoid confusion and misinformation.8This broad category of vulnerable and mentally impaired suspects may provide particularly unreliable statements in response to the isolation, fear, and intimidation of police interrogation settings, particularly if prompted by explicit or implied promises or threats such as being freed to go home or getting a better or worse result at trial. Some scholars have attempted to compile a checklist to assess the trustworthiness of a 6Ofshe & Leo, supra note 3, at 1114-1115. 7Id. at 1115. 8CYNTHIA K. LEE, MURDER AND THE REASONABLE MAN: PASSION AND FEAR IN THE CRIMINAL
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5 confession. One, apparently prepared by Professor Saul Kassin,9is as follows:Consider the defendant’s background: IQ, mental disability, personality, compliant personality, exhausted or terrified, etc. Assess the circumstances of police questioning: length of interrogation, tactics employed, claims about existing evidence, express or implied threats or promises, offers to let them go home if they would confess, etc. Was the confession the defendant’s own statement or simply an acceptance of police suggestions? Did the defendant’s statement lead to new evidence that the police did not know of prior to the defendant’s statement?Was it the defendant or the police who first stated key facts?Any of these factors should cause heightened concern about the trustworthiness of a confession, but undoubtedly interrogations with none of the factors could nonetheless result in false confessions. The Practice of Recording ConfessionsIn some jurisdictions, New York among them, substantial numbers of confessions are preserved on videotape. Interrogations are not. Under common current practice, subjects are interviewed by detectives and, if a major crime is admitted, a prosecutor will capture the confessionon videotape. That videotape is available as evidence at trial, and is, of course, very convincing. Weunderstand that every New York City precinct’s detective bureau has at least a single set of videotaping equipment available. Audio-tape recording equipment is readily available at all precincts.An ever-increasing number of jurisdictions record interrogations. A comprehensive study was published in March 1993, under the auspices of the U.S. Department of Justice, Office of Justice COURTROOM (New York: New York University Press)(2003).
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6 Programs, National Institute of Justice. (Geller, Videotaping Interrogations and Confessions, DOJ HV 7635 .U548 G318 (1993)). It found that videotaping was used to some extent by one third of all police departments in jurisdictions with populations over 50,000. We have heard of no jurisdiction discontinuing recording of interrogations, and police departments continue to adopt the practice. For example, at the end of January 2003, the Fort Lauderdale Police Department announced its plan to videotape all homicide interrogations from start to finish. Interestingly, this department adopted the practice after studying other police agencies and concluding that “the advantages of taping far outweighed any perceived disadvantages.”10According to the Geller study, those jurisdictions that did videotape overwhelmingly found that videotaping improved the quality of police interrogations -- nearly 50% reported that it helped alot and over 35% that it helped somewhat. The benefits included better preparation work by detectives, avoidance of distractions (typewriters, notebooks or extra personnel) at the interrogation, easy monitoring of interrogations by supervisors through closed-circuit television to assess performance, use of taped interrogations for training, and use of taped confessions to elicit a confession from suspected accomplices. In addition, as a result of videotaping, there were fewer allegations by defense attorneys of coercion or intimidation. Prosecutors likewise “were in virtually unanimous agreement” that videotaping helped themassess the State’s case and prepare for trial, and also credited videotapes for providing details otherwise unavailable, including the suspect’s and officer’s physical condition and demeanor. While Minnesota requires electronic recording, but not necessarily videotaping, last year, Hennepin County 9See Welsh White, False Confessions in Criminal Cases, (ABA) CRIMINAL JUSTICE (Winter 2003) at 5. 10Miami Herald, Feb. 1, 2003.
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7 Attorney Amy Klobuchar wrote, “At the time of the decision to require recording in Minnesota, most police and prosecutors in the state feared the new rule would make their jobs harder and undermine the cause of justice. But during the past eight years it has become clear that videotaped interrogations have strengthened the ability of police and prosecutors to secure convictions against the guilty. At the same time, they have helped protect the rights of suspects by ensuring the integrity of the criminal justice process.”11The Geller study quoted defense attorneys as more opposed to videotaping, because it gave the prosecutor a strategic edge, but defenders still found the tapes useful for “client control” and evaluating the case with the client, and occasionally useful in conveying non-verbal information. The Geller study considered all videotaping, with one section discussing the distinction between taping full interrogations as opposed to “recaps.” It reported that full interviews averaged two to four hours, while recap interviews averaged 15 to 45 minutes. The study reported some extra costs in videotaping full interrogations because of the increased use of tape and extra transcription costs. The discussion of the favorable comments about videotaping by prosecutors and police officers did not distinguish between those who record only recaps and those who record complete interviews. In sum, the study found that 97% of departments that have ever videotaped suspects’ statements find the videotaping to be useful. The Trend Toward Requiring Recording of Interrogations. Recording interviews has been required by judicial opinion in Alaska since 198512and 11“Eye on Interrogations: How Videotaping Serves the Cause of Justice,” Washington Post, June 10, 2002. Hennepin County includes Minneapolis and 44 suburban communities.12Stephan v. State, 711 P.2d 1156 (1985).
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8 Minnesota since 1994.13The practice has been requested via suppression motion in numerous other jurisdictions, including New York State.14State courts have responded that although recording complete interrogations would be a good idea, it was not required by due process and should be addressed by the legislature. Two United States’ jurisdictions, the District ofColumbia and Illinois, have recently enacted statutes requiring recording of full interrogations in certain crimes.15There are at least five recent legislative proposals in the United States, in New York City, Maryland, Connecticut, Oregon and Missouri.16The District of Columbia statute17requires the Chief of Police to adopt a General Order requiring the police to “electronically record, in their entirety, and to the greatest extent feasible, interrogations of persons suspected of committing a dangerous crime or a crime of violence” if the interrogation is conducted in interview rooms that have recording equipment. Matters to be considered in the Order include when the suspect should be advised of the recording, what questioning on lesser crimes should be recorded, and how to ensure recording of interrogations in locations other than equipped interview rooms. The statute provides for maintaining relevant statistics and for reports, including an evaluation of the benefits of videotaping. 13State v. Scales, 518 N.W. 2d 587 (1994).14People v. Owens, 185 Misc. 2d 661 (Monroe Cty. 2000).15These statutes, like the decisions in Alaska and Minnesota do not specifically require videotaping. 16New York City Council Int. No. 270; Conn. Raised Bill No. 539, LCO No. 2163 (2002); Missouri Senate Bill 231, 92ndGeneral Assembly (2003); Oregon House Bill 2079 (2003). Maryland House Bill 407 (2002) was withdrawn.17D.C. Code §5-133.20.
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9 The Illinois statute18provides that, in homicide cases, statements made as a result of custodial interrogation in a police station or place of detention are presumptively inadmissible if not electronically recorded. This presumption can be overcome by proof, by a preponderance of the evidence, that the statement was voluntary and reliable based on the totality ofthe circumstances. In addition, the State can use the statement after proving, by a preponderance of the evidence, any of the following exceptions: (i) the statement was made in open court, before a grand jury, or at a preliminary hearing; (ii) the statement was not recorded because it was not feasible to do so; (iii) the statement was voluntary and bears on the credibility ofthedefendantasawitness;(iv) the statement was spontaneous and not in response to a question; (v) the statement was made after routine questioning for processing; (vi) the suspect requested that there be no recording, if the request is recorded; (vii) the statement was made out of state; (viii) the statement was made when the interrogator was unaware that a death had in fact occurred; (ix) multiple suspects were questioned, and all available recording equipment was beingutilized for other suspects; or (ix) the statement was otherwise admissible under law. These two enacted statutes are cautious starts that may serve as a model for jurisdictions concerned that requiring recording in all cases will jeopardize prosecutions of the guilty or be 18Ill. Public Act 93-0517.
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10 unduly burdensome. The Connecticut proposed bill provided that custodial interrogations at a police station, courthouse, correctional facility, community correctional center or detention facility shall be electronically recorded in their entirety when feasible, and directed the court to instruct the jury that it may consider any failure to record the interview in determining the reliability of a confession.