OPINION 392
February 1978

ATTORNEY RECORDING CONVERSATION WITHOUT CONSENT OR KNOWLEDGE

Canon 1; EC 1-5, EC 9-6; DR 1-102(A)(4), DR 7-102(A)(8).

Question

May an attorney in the course of his practice of law electronically record a conversation without first informing all parties to the conversation?

Opinion

While the recording of a conversation either by telephone or in person is not a violation of law if done with the consent of one party to the conversation, even though done without knowledge or consent of the other party, 35 Tex. L. Rev. 440, 58 ALR 2d, 1026, 47 U.S.C. P605, Rathbun v. United States 355 U.S. 107, 110-111 (1957); nevertheless, attorneys are held to a higher standard by Canons 1 and 9. The secret recording of conversations offends the sense of honor and fair play of most people.

Normally, therefore, no attorney should electronically record a conversation with another party, without first informing that party that the conversation is being recorded. This particularly applies to conversations between attorneys when candor and confidentiality should be strictly observed.

There may be, however, extraordinary circumstances in which the state attorney general or local government or law enforcement attorneys or officers acting under the direction of the attorney general or such principal prosecuting attorneys might ethically make and use secret recordings if acting within strict statutory limitations conforming to constitutional requirements. This opinion does not address such exceptions which would necessarily require examination on a case by case basis. See ABA Formal Opinion 337; New York Formal Opinion 328. Accordingly, former Texas Opinion 84 (November, 1953) is hereby overruled.