The practice is unquestionably unethical when it is done illegally; its status is more uncertain when it is done legally. A majority of the jurisdictions on record have rejected the proposition that secret recording of a conversation is per se unethical even when not illegal. A number endorse a contrary view, however, and an even greater number have yet to announce their position. Reaction to the Opinion 337 was mixed. Alaska Bar Association Ethics Committee Ethics Opinion No. "... [T]he Committee is of the opinion that the findings and assumptions of the American Bar Association Committee expressed in ABA Formal Opinion 337 remain valid today: that a failure to give notice of the recording of a conversation to all parties is the equivalent of a representation that the conversation is not being recorded, and is thus deceitful in violation of DR 1-102(A)(4). A lawyer may secretly record a conversation in order to protect against perjury. Although it is not illegal in the state of Indiana to tape record another person without that person's knowledge, it is unethical for an attorney to do this to another attorney in the context of a pending legal matter without informing him first." The Code proscribes an attorney surreptitiously recording conversations directly or indirectly without the consent of all parties. No.... "Model Rule 8.4(c) prohibits 'conduct involving dishonesty, fraud, deceit or misrepresentation.' 422 (2001). The committee is further of the opinion that it is not improper for a lawyer engaged in such an investigation to participate in, or to advise another person to participate in, a communication with a third party which is electronically recorded with the full knowledge and consent of one party to the conversation, but without the knowledge or consent of the other party, as long as the recording is otherwise lawful.
In some jurisdictions, it is unethical for an attorney to secretly record a conversation even though it is not illegal to do so. A few states require the consent of all parties to a conversation before it may be recorded. Recording without mutual consent is both illegal and unethical in those jurisdictions. Elsewhere the matter is more uncertain.
In 1974, the American Bar Association (ABA) opined that surreptitiously recording a conversation without the knowledge or consent of all of the participants violated the ethical prohibition against engaging in conduct involving "dishonesty, fraud, deceit or misrepresentation." The ABA conceded, however, that law enforcement recording, conducted under judicial supervision, might breach no ethical standard. Reaction among the authorities responsible for regulation of the practice of law in the various states was mixed. In 2001, the ABA reversed its earlier opinion and announced that it no longer considered one-party consent recording per se unethical when it is otherwise lawful.
Today, this is the view of a majority of the jurisdictions on record. A substantial number, however, disagree. An even greater number have yet announce to an opinion.
A sampling of the views of various bar associations in the question is attached. An earlier version of this report once appeared under the same title as CRS Report 98-250. An abridged version of this report is available without footnotes or attachment as CRS Report R42649, Wiretapping, Tape Recorders, and Legal Ethics: An Abridged Overview of Questions Posed by Attorney Involvement in Secretly Recording Conversation.