An attorney may ethically advise a client that the client may tape record a telephone conversation in which one party to the conversation has not given consent to its recording, if the attorney concludes that such taping is not prohibited by federal or state law. [ERs 1.2(d), 1.4(b), 2.1]
The inquiring attorney's client is a divorced parent. On good faith, the client believes that during telephone conversations between the client's children and the client's former spouse, the former spouse undermines the children's relationship with the client. After the conversations, the children demonstrate severe emotional upset, often lasting for hours. The inquiring attorney has been asked by the client whether the client may tape record telephone conversations between the children and the former spouse without the former spouse's knowledge or consent.
May an attorney ethically advise a client that the client may record telephone conversations between the client's children and the client's former spouse without the former spouse's knowledge or consent?
RELEVANT ETHICAL RULES
ER 1.2. Scope of Representation
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(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
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ER 1.4. Communication
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
ER 2.1. Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.
This Committee has issued a number of opinions that address whether an attorney may ethically participate, directly or indirectly, in tape recording a conversation without the consent or prior knowledge of all parties to the conversation. See, e.g., Ariz. Op. 95-03 (summarizing prior opinions). In Ariz. Op. 75-13, decided before the Model Rules of Professional Conduct were adopted in Arizona, we stated a broad general rule that, with certain exceptions, it was "improper for a lawyer to record by tape recorder or other electronic device any conversation between the lawyer and another person, or between third persons, without the consent or prior knowledge of all parties to the conversation." Ariz. Op. 75-13 at 2. In our most recent opinion, Ariz. Op. 95-03, we said that an attorney may not surreptitiously tape record a telephone conversation with opposing counsel because such conduct involved an element of deceit and misrepresentation and thus violated ER 8.4(d). Ariz. Op. 95-03 at 5. We have not previously considered whether an attorney may ethically advise his or her client that the client may surreptitiously tape record a conversation.
Federal and state laws allow tape recording of telephone conversations without the consent of all parties under certain circumstances. See 18 U.S.C. § 2511(2)(d); A.R.S. § 13-3005; State v. Allgood, 171 Ariz. 522, 523-24, 831 P.2d 1290, 1291-92 (App. 1992). Whether those circumstances exist here is a question of law beyond the scope of our jurisdiction.
If the inquiring attorney concludes that the client's proposed conduct is illegal under federal or state law, then the inquiring attorney may not, under ER 1.2(d), advise the client to tape record telephone conversations between the client's children and the client's former spouse.
If, on the other hand, the inquiring attorney concludes that the client may legally tape record those conversations, is there anything in our prior opinions on the ethical propriety of an attorney's participation in surreptitious tape recording that would preclude the inquiring attorney from so advising the client? We think not. Our earlier opinions on surreptitious tape recording recognized ethical limitations on an attorney's direct participation in surreptitious tape recording, either personally, or through an agent, such as an investigator. Here, by contrast, it is the proposed conduct of a client, not an attorney, that is at issue. The inquiring attorney has a duty to "provide [his or her] client with an informed understanding of the client's legal rights and obligations and [to] explain their practical implications." Preamble to Arizona Rules of Professional Conduct. See also ERs 1.4(b) and 2.1. That the inquiring attorney is ethically precluded from engaging in surreptitious tape recording except in certain limited circumstances does not mean that the inquiring attorney may not advise the client that the client may legally do so. See Tex. Professional Ethics Comm. Op. No. 514 (February 1996) (attorney may ethically advise client that client may legally tape record conversation without consent of other party). Contra S.C. Bar Ethics Advisory Comm. Op. No. 91-14 (July 1991).
We hasten to add that, while an attorney may advise a client about the client's right to surreptitiously tape record conversations, the attorney may not participate in the surreptitious tape recording of a conversation, except as permitted by our prior opinions. Further, even if a client does not raise the issue of surreptitious tape recording, the attorney may on the attorney's own initiative advise the client about the client's right to surreptitiously tape record conversations under Arizona law. Finally, attorneys may not use third parties to tape record conversations which an attorney ethically cannot tape record under the prior opinions of the Committee, Ariz. Ops. 75-13, 90-02, and 95-03.