BY EDWARD McINTYRE
ETHICS
E
You Want to Record What? Think twice before pressing record
D
uncan hovered at Macbeth’s door, another man in tow. “Can we disturb you, Uncle? My friend,
Smedley.” “You have. But come in and take a seat. Shall we invite Sara to join us?” When everyone was comfortable, Macbeth turned to Duncan: “Did you and Mr. Smedley have a question for us?” Duncan nodded toward Smedley. He started. “I have an office here. Also one in Phoenix. Got a couple of difficult clients at the moment. Don’t like questions they’re asking. Stuff they’re saying. I think it’d be good if I used my Phoenix office to talk to them. Record the calls.” “Because Arizona is a single-party consent state?” “Precisely. California requires both parties to agree.”
CARTOON BY GEORGE BREWSTER JR.
“Your concern is ethics?”
“Among other things, but yes.”
“So —”
“As a California lawyer, you’re still governed by our Rules of Professional Conduct. And our State Bar Act.”
“And, of course, section 6068 (e)(1) and rule 1.6 still require us to protect client confidences and secrets at every peril to ourselves. That did not change.”
“OK.” “Let’s look at this based on the new rules that go into effect November 1.” “Makes sense to me.” “Rule 8.4, subdivision (c) says it is professional misconduct to engage in conduct involving dishonesty or deceit or intentional misrepresentation.” “OK, but —” “And rule 4.1 prohibits making a material false statement to a third person when representing a client.” “But —” “Then, rule 1.4 requires a lawyer to keep a client reasonably informed about significant developments relating to the representation.”
“Yeah, but —” “Finally, we have our duty of loyalty. Hallmark of our profession. Key to our relationship with a client.” Macbeth looked at all three young lawyers. “Against this backdrop, how would you analyze surreptitiously recording a client’s call?” Sara spoke first. “When the ABA reexamined an older opinion in 2001, its committee on ethics and professional responsibility was divided on whether a lawyer could record a client call without a client’s knowledge. But the committee agreed it was inadvisable to do it.” Macbeth nodded. “State Bar opinions across the country are split on nonconsensual taping, even where it’s legal. They don’t give us much guidance. So let’s look at it with fresh eyes.” Duncan spoke. “Can’t hurt.” Macbeth picked up the thread. “Is surreptitious taping a client’s call deceitful conduct, under rule 8.4(c), at least implicitly? And if rule 4.1 prohibits a lawyer from making false statements to total strangers, do we not owe a special duty of genuine candor to clients?” Smedley spoke. “Lawyers take notes of calls with clients all the time. Or dictate memoranda. What’s the difference?” Duncan shrugged and nodded. Macbeth spoke. “Good question. When a lawyer takes notes, don’t we have — for the most part — the lawyer’s impressions of what the client said? Even when the lawyer puts down a quote or two, we don’t have a recording that captures the ‘client’s July/August 2018 SAN DIEGO LAWYER 13