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 92-17
A client seeks an attorney's advice about surreptitiously tape recording a conversation between the client and his employer. The stated purpose of the recording is to preserve evidence that the employer is pressuring the client to engage in improper conduct in the course of his employment. The recordings would be used if the client were fired by his employer for refusing to engage in the improper conduct.
Questions:
1. Is it ethical for the attorney to advise the client to surreptitiously record the conversation with his employer?
2. Is it ethical for the attorney to recommend to the client a company capable of supplying recording equipment necessary to record the conversation?
Summary:
1. Depending upon one's reading of South Carolina case law, it may be unethical for an attorney to advise a client to surreptitiously record a conversation between the client and his employer.
2. Depending upon one's reading of South Carolina case law, it may be unethical for an attorney to recommend to a client a company capable of supplying recording equipment necessary to surreptitiously record a conversation.
Opinion:
Rule of Professional Conduct 8.4 (d) states that "(i)t is professional misconduct for a lawyer to . . . (e)ngage in conduct involving dishonesty, fraud, deceit or misrepresentation." The South Carolina Supreme Court has construed this language to preclude an attorney from recording any conversation or portion of a conversation without the prior knowledge and consent of all parties to the conversation, irrespective of the purpose for which the recording is made. In the Matter of An Anonymous Member of the South Carolina Bar, 404 S.E. 2d 513 (S.C. 1991). See also, In Re: Anonymous Member of the South Carolina Bar, 322 S.E. 2d 667 (S.C. 1984). The Court has also held that the language of Rule 8.4(d) precludes an attorney from engaging in a scheme to entrap and secretly record a Family Court Judge who is allegedly involved in judicial misconduct. In Re: Warner, 335 S.E. 2d 90 (S.C. 1985).
The Court's single exception to these rules applies when an attorney records a conversation made with the prior consent or at the request of an appropriate law enforcement agency in the course of a legitimate criminal investigation. In the Matter of:
Attorney General's Petition, S.C. Supreme Court Order dated 3/25/92 (Davis Adv. Sh. No 10 at p.1). These cases make it abundantly clear that, except when involved in an official criminal investigation, an attorney himself may never surreptitiously record a conversation with another person, regardless of the purpose of the recording. However, while a broad reading of Warner implies that it is also improper for an attorney to counsel or assist his client in surreptitiously recording a conversation which the attorney himself would be prohibited from recording, a narrow reading of Warner implies only that an attorney and his client cannot engage in a scheme to record a judge in chambers, for whom administrative procedures are available to redress misconduct. These rules would not appear to apply, however, when a client comes to an attorney asking simply whether it is legal to surreptitiously record a conversation. There seems to be a meaningful distinction between (1) advising a client that he can legally engage in secret recording, and (2) instructing or assisting a client to actually engage in secret recording. For example, it would not be impermissible for the attorney to render an opinion about whether the Omnibus Crime Control and Safe Street Acts of 1968, 18 U.S.C. s 2511, makes it legal for a person to secretly record a conversation. Such an opinion is essentially nothing more than interpretation of a statute. Any contrary conclusion would prevent lay persons from obtaining advice about the legality of contemplated future conduct. On the other hand, depending upon one's reading of Warner, it might be impermissible for an attorney to actually instruct a client to secretly record a conversation or provide him with the means for doing so.
In summary, while Warner can be read narrowly only to prohibit an attorney from assisting a client to secretly record conversations with a judge which would then be used to prove judicial misconduct, Warner can also be read broadly to prohibit an attorney from counseling or assisting anyone to secretly record any conversation with anyone. Until Warner is clarified, this area remains uncertain and the prudent course would seem to be to give Warner a broad reading.