Recording a Conversation with a Client
6 Pages Posted: 22 Aug 2018 Last revised: 19 Nov 2019
Date Written: November 1, 2019
Abstract
On Saturday, July 21, 2018, President Donald Trump said that he finds it to be “inconceivable that a lawyer would tape a client” as the president weighed in following the disclosure that his then-personal attorney Michael Cohen secretly recorded their discussion about a potential payment for a former Playboy model's account of having an affair with Trump. The recorded conversation occurred in the weeks before the 2016 election. In some states (single party consent states), and under a formal opinion adopted by the ABA in 1974 (Formal Opinion 337), an attorney surreptitiously recording a client may not be illegal, but would be considered unethical. Some states require the consent of both parties for a recording of a conversation to be made. In 2001 the ABA updated its policy (ABA Formal Opinion 422) holding that an attorney taping conversations where it was legal to do so is not inherently unethical, although the circumstances of the taping must be considered. Colorado Formal Opinion 112 (2003) generally finds that undisclosed recording of conversations by a lawyer is generally not permitted, but provides some exceptions where surreptitious recording would not be unethical. This paper discusses President Trump's statement under New York law, Colorado law, and the ABA Formal Opinions, as well as a related article in the January-February 2019 ABA Journal.
Keywords: recording conversations with a client, attorney ethics, model rules
JEL Classification: K
Suggested Citation: Suggested Citation