UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 91-14
Attorney A wants to know if he can advise his client to record an attorney advise a client in a divorce action to record the client's telephone conversations with the client's spouse?
Summary:
An attorney may not advise a client to tape record the client's conversations with his spouse.
Opinion:
To preserve the traditional high standards of fairness and candor which characterize the practice of law, Rule of Professional Conduct 8.4(d) prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. In accordance with Rule 8.4(d), prior advisory opinions have prohibited an attorney from tape recording conversations with other persons without their consent (See SC Bar Advisory Opinion 83-1 (9/84); ABA Informal Opinions 1008 and 1009 (10/67); ABA Informal Opinion 337 (8/74). Furthermore, the SC Supreme Court held that participation with a client in a scheme to first entrap and then secretly record a conference with a family court judge violated DR-1-102(A)(4). In re Warner, 286 S.C. 461, 335 S.E. 2d 91 (1985). (See also In the Matter of An Anonymous Member of the South Carolina Bar, SC Supreme Court Advance Sheets, 5/7/91.).
Applying the above rules in this matter, the answer is clear that no attorney should record, cause to be recorded, counsel a client to record or assist a client to record any conversation without the consent or prior knowledge of all parties to the conversation (See Hawaii Supreme Court Disciplinary Board, Formal Opinion 30, 11/30/88; Gunter v. Virginia State Bar, Virginia Supreme Court No. 890473, 11/10/89; Arizona State Bar Committee on Rules of Professional Conduct, Opinion 88-8, 10/24/88).