Secret Recordings No Longer Inherently Unethical in Ohio

From the web page of the Ohio Supreme Court:

In  an advisory opinion issued last week, the Supreme Court of Ohio Board of  Commissioners on Grievances & 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 A previous  advisory opinion issued on the topic has been withdrawn because it found the  action to be misconduct.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.

(Mike Frisch)