At 5:34 am on July 25, 2018, a certain someone raised the above question upon learning that his personal lawyer had taped at least one conversation they had. The media responded by stating that New York is a ‘one person consent’ state, and thus the taping was legal. But was it ethical?
The authorities are split. The ABA says that taping a conversation with a client without the client’s consent is now permitted; a shift in their long-standing position against it. The ABA opined in 1974 that surreptitious taping was tantamount to dishonesty or misrepresentation (ABA Op. 337). In June 2001 the ABA changed its position (ABA Op. 01-422): “[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.” However, the opinion does advise that a lawyer may not make secret recordings in violation of the law “nor falsely represent that a conversation is not being recorded.” Many states have since taken the same position.
New York has not followed the lead of the ABA. New York City Bar Op. 2003-02 continues to opine that undisclosed taping “smacks of trickery” and is improper “as a regular practice.” The opinion equivocates yet concludes that “A lawyer may tape a conversation without disclosure of that fact to all participants if the lawyer has a reasonable basis for believing that disclosure of the taping would significantly impair pursuit of a generally accepted societal good. However, undisclosed taping entails a sufficient lack of candor and a significant element of trickery as to render it ethically impermissible as a routine practice.”
The New York State Bar continues to opine that undisclosed taping, except in special situations, is unethical (NYSBA Op. 329, 1974). In support of its position, the opinion well states that “The Bar is a guardian of the public interest. The morals of the marketplace are not always sufficient as standards for the legal profession.” The opinion relies upon a lawyer being candid and fair, and upon his actions being perceived by the public as candid and fair.
So the ABA and many other states say the undisclosed taping of conversations is ethical; as long as it is not a common practice. The New York City Bar says it is permissible in the pursuit of a generally accepted public good, even though it still is considered trickery. The New York State Bar says undisclosed taping is unethical; with some extraordinary un-enumerated exceptions, because it is not candid or fair. Yet, to my mind, there is a major element missing from these opinions.
What about fiduciary duty and client loyalty? Undisclosed taping by your butcher in New York is lawful. However, there is no special or fiduciary duty running from your butcher to you. The attorney-client relationship is a special fiduciary relationship. “An attorney stands in a fiduciary relation to the client” (Graubard Mollen Dannett & Horowitz v Moskovitz, 86 NY2d 112, 118 ). As a fiduciary, an attorney “is charged with a high degree of undivided loyalty to his [or her] client” (Matter of Kelly v Greason, 23 NY2d 368, 375 ).
How can we possibly say that the practice of surreptitious taping of a client is anything but deceitful and dishonest? How can we countenance a lawyer being deceitful to a client by not disclosing the taping of a conversation, when the lawyer owes a duty of “a high degree of undivided loyalty” to every client? In my opinion, we cannot.