ABA Formal Opinion 01-422: Is It Unethical for a Lawyer to Record Someone Without Telling Them?

The ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 01-422 in 2001. It withdrew the earlier ABA view that secret recording by a lawyer was always dishonest. Instead, the opinion concluded that a lawyer’s undisclosed recording of a conversation is not per se unethical if the recording is legal under the law of the jurisdiction where it occurs and is not accompanied by other misconduct. The ABA reasoned that people generally do not reasonably rely on an expectation that conversations aren’t being recorded, so mere non-disclosure doesn’t itself amount to deceit. The opinion also cautioned that a lawyer who lies when asked whether a conversation is being recorded, or who uses the recording to commit a crime or fraud, can still face discipline.

A clear majority of states that have addressed the issue now follow the ABA’s permissive approach. Alaska’s Bar Ethics Opinion 2003-1 says undisclosed recording is not per se unethical if legal and not accompanied by misrepresentation. Minnesota repealed its own prior blanket ban in 2002, explicitly citing the ABA’s change of heart. Ohio’s Board of Professional Conduct withdrew its older per-se rule in 2012 and adopted ABA 01-422’s reasoning. Other followers include Alabama, Maine, Missouri, Mississippi, Nebraska, Ohio, Oklahoma, Texas, Utah, and Vermont. In each of these states, the key condition is that the recording must be lawful under the state’s wiretap statute; if it isn’t, discipline can follow regardless of the ABA’s view.

A smaller group of states still treat undisclosed recording as presumptively unethical. Hawaii’s 1988 opinion says a lawyer should not record any conversation without the consent of all parties, even if the recording is legal. Idaho’s Formal Opinion 130 bars undisclosed recording with opposing counsel or potential witnesses, grounding the rule in conduct prejudicial to the administration of justice. Indiana’s 2000 opinion likewise rejects the ABA’s permissive approach and treats undisclosed recording as fundamentally deceitful. Kansas’s 1997 opinion and Kentucky’s 1984 opinions take the same restrictive view. New Mexico’s 2005 opinion likewise rejects the ABA’s permissive approach and requires disclosure when a witness believes the conversation is off the record. South Carolina’s Supreme Court has repeatedly held that undisclosed recording by a lawyer acting in a representative capacity violates the rule against dishonesty.

Several states carve out narrow exceptions rather than adopting a blanket rule. New York’s City Bar says undisclosed recording is ethically impermissible as a routine practice but may be permitted in extraordinary circumstances, such as investigating ongoing criminal conduct or witness perjury. Virginia’s ethics opinions allow undisclosed recording only for specific purposes like criminal or housing-discrimination investigations, or when the lawyer is personally threatened. Wisconsin’s 2024 opinion permits undisclosed recording of opposing counsel and third parties but flatly prohibits recording clients without informed consent. Colorado bars undisclosed recording except when a lawyer is advising or supervising lawful investigative activities. Arizona’s own committee tried to adopt ABA 01-422 in 2021, but the state Supreme Court rejected the proposal, leaving older Arizona opinions in place.

A state’s permissive rule doesn’t give lawyers a free pass. A lawyer who lies when asked whether a conversation is being recorded commits a separate ethics violation. A lawyer who records a client without disclosure can violate duties of loyalty and confidentiality. A lawyer who uses a recording to entrap or coerce someone can face discipline for the underlying conduct. Even in a one-party-consent state, a lawyer who records a conversation that is independently illegal (for example, to commit extortion) can be disciplined under the rules against criminal acts. Practically, the safest course is to disclose or obtain consent unless the state’s ethics authority has clearly blessed the practice.

A state’s wiretap statute determines whether the recording itself is a crime, not whether it’s unethical. Many states are one-party-consent, meaning a participant can legally record without telling the others. Some states require all parties’ consent. But ethics rules are separate. Alabama’s ethics opinion says even though Alabama is a one-party-consent state, undisclosed recording can still be unethical if it reflects dishonesty. Minnesota’s repeal explicitly noted that legality under Minnesota’s one-party-consent statute is a floor, not a ceiling. Texas’s opinion likewise conditions permissibility on legality but adds extra client-protection safeguards. Always check both the wiretap statute and the ethics rules before recording.

Imagine a lawyer represents a restaurant client sued after a patron claims to have slipped on a wet floor. The patron’s version of events is vague, and the lawyer suspects the patron exaggerated. The lawyer, without telling the patron, records a follow-up phone call in which the patron repeats the story. The call happens in a one-party-consent state, so the recording itself is legal. In Alaska, Maine, or Ohio, the ethics opinion would likely treat the recording as not per se unethical because it’s legal and not accompanied by other misconduct. In Hawaii, Idaho, Indiana, Kansas, or Kentucky, the same conduct could be viewed as presumptively improper. In New York or Virginia, the lawyer would need a recognized exception (such as investigating fraud) to justify the undisclosed recording. Even in a permissive state, the lawyer who lies if directly asked whether the call is recorded would face discipline for the lie itself.