Two years ago, I published a short magazine article on whether it is ethical for a lawyer to secretly record a conversation with a client. (See here.) In it, I pointed out that whether it is unethical to record a conversation in a state that does not require all parties to the conversation to consent to the recording is not entirely clear. Some state advisory opinions have held that the conduct should be considered to be inherently unethical, but that is not the view of the ABA Standing Committee on Professional Responsibility nor is it the law in many states.
I am writing about this today because I just found out that the Arizona Supreme Court has rejected the Attorney Ethics Advisory Committee’s attempt to upend this state’s decades-long position that surreptitious recording by lawyers is per se unethical even though it may be legal. The Committee had proposed a new ethics opinion, but the Court rejected it and ordered that it not be posted.
Ethics at Law has the story here.