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Ohio ethics opinion recedes from its 1997 opinion and finds that covert recordings by a lawyer are not per se unethical

Hello and welcome to this Ethics Alert blog which will discuss the recent ethics opinion of the Ohio Supreme Court’s Board of Commissioners Grievances and Discipline which found that a legal covert recording of a conversation by a lawyer is not per se unethical reversing a 1997 ethics opinion which found to the contrary.  The opinion is Ohio Supreme Court Bd. of Commissioners on Grievances & Discipline, Op. 2012-1 (June 8, 2012) and the opinion is here:

The 2012 ethics opinion reversed the 1997 opinion which found that a lawyer was prohibited from secretly recording a conversation without the consent of all parties (even though Ohio permits such recording with the consent of a party) and found that it is not inherently unethical for a lawyer to record a conversation if the recording is legal.  Ohio Ethics Opinion 97-3 had found that under the then applicable Ohio Code of Professional Responsibility, a lawyer’s secret recording of conversations was a presumptive violation of the disciplinary rule prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation.

The opinion noted that the ABA had changed its position on the issue in 2001 and cited to case law from Ohio and other states, as well as a diminished expectation of privacy with advances in technology.  The opinion stated that 13 states have found that surreptitious recording by lawyers is not per se misconduct, 10 states have found that surreptitious recording is both illegal and unethical for lawyers, 9 states have found that surreptitious recording by lawyers is unethical but allowed in certain circumstances, 4 states evaluate surreptitious recording on a case-by-case basis, and 13 other states have not expressed an opinion on the issue (including Florida).

The ethics opinion also pointed out that under Ohio law, federal law, and the law of a majority of states (but not Florida), the recording of conversations is legal if one party consents and 26 states also permit surreptitious recording by lawyers in at least some situations.  In addition, in 2004, the Ohio Supreme Court dismissed allegations of dishonesty against a lawyer who surreptitiously recorded an interview and when lawyers have been disciplined in other states for surreptitious recording, the misconduct involved additional facts such as lying about the recording.  Further, “(p)ublic expectations of privacy have changed given advances in technology and the increased availability of recording equipment.”

The opinion found that secret legal recordings are not per se unethical; however, even if a secret recording is legal, it may violate Ohio Bar Rule 4.4 (obtaining evidence in violation of a person’s rights), Rule 8.4(b) (illegal act reflecting adversely on honesty or trustworthiness), Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation), or Rule 8.4(h) (conduct adversely reflecting on fitness to practice).  Finally, the opinion stated that lawyers typically should not record conversations with clients and prospective clients without their consent (even if legal) and the act of secretly recording a conversation will usually be inconsistent with a lawyer’s obligations of loyalty and confidentiality.  Further, the opinion stated that it was based on the assumption that a lawyer’s surreptitious recording does not violate the law of the jurisdiction where the recording takes place and, before capturing a conversation in another state, an Ohio lawyer should verify that such recording is legal in that jurisdiction.

Bottom line:  This is an interesting and non-binding Ohio ethics opinion.  In Florida, it is a felony to intercept or endeavor to intercept any wire, oral, or electronic communication, or to use or disclose the communication without the consent of all parties unless there is a court order, or under other circumstances, including criminal investigations and Florida lawyers are prohibited from surreptitiously intercepting or recording any communications unless there is a specific exception.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

[email protected]


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