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Advisory opinion addresses secret recording by lawyer

In an advisory opinion issued last week, the Supreme Court of Ohio Board of Commissioners on Grievances and Discipline found that a legal but secret recording of a conversation by a lawyer is not inherently unethical. A previous advisory opinion issued on the topic has been withdrawn because it found the action to be misconduct.

The board based its new approach on the American Bar Association (ABA) reversing its position on the issue in 2001, case law from Ohio and other states, and a “diminished expectation of privacy given advances in technology.”

Opinion 2012-1 centers on Rule 8.4 (c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Ohio Rules of Professional Conduct.

The advisory opinion includes several caveats for lawyers engaging in this activity.

“Although the Board is fashioning a new standard for surreptitious recording by Ohio lawyers, the Board is not in any way indicating that a lawyer cannot be disciplined for conduct involving such recording,” the opinion states.

“The mere act of surreptitiously or secretly recording a conversation should not be the impetus for a charge of misconduct. Instead, the totality of the circumstances surrounding the recording must be evaluated to determine whether a lawyer has engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Prof. Cond. R. 8.4 (c).”

In addition, the board noted it “agrees with the ABA’s general admonition against surreptitious recording of client conversations.” The board found that lawyers generally should not record their conversations with clients and prospective clients without consent.

Read the complete text of the opinion.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are informal, nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Ohio Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office.

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