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Big ears

Your client's charged with domestic violence.  He tells you that it's all a misunderstanding, and that his wife really just fell down, but told the police he'd punched her because she was upset that he came home late/got drunk/had slept with her sister/all of the above.  What's more, he tells you, she's been trying to get hold of the prosecutor to tell him it was all a big mistake, but he won't listen, so now she wants to call you and make a full statement about it.  So you pull out your trusty tape recorder, plug it into the phone, and eagerly await her call.  Sure enough, she does, and gives you a full accounting of the incident, which should come in very handy should she back up again and go with the original story after the prosecutor's told her that she can be charged with a crime if she doesn't.  And, of course, you never mention that you've got the tape recorder while you're talking with her.

Now, there are a number of reasons why this is dumb move; after all, how are you going to get the tape admitted without becoming a witness yourself?  (Slaps head; so that's why I have my investigator do this!)  But today, there's one less reason that this is dumb move:  after the call from her, at least you don't have to worry about a future call from disciplinary counsel.

Back in 1997, the Board of Commissioners on Grievances and Discipline (and isn't that a medieval-sounding title; make it the Board of Commissioners on Grievances, Torture, and Extraction of Confessions, and you'd have something right out of Richard II's reign) issued an opinion declaring that a surreptitious recording by an Ohio lawyer was a violation of the Code of Professional Responsibility's rule against lawyers engaging in "conduct involving dishonesty, fraud, deceit, or misrepresentation."  That in turn was based on a 1974 ABA opinion that a lawyer shouldn't record a conversation without the consent of all parties.  That opinion, in turn, was probably prompted by the Watergate scandal; it was issued the day after Nixon resigned.

The opinion didn't make a blanket condemnation of the practice; there was an exception for prosecutors and law enforcement attorneys, for criminal defense attorneys (when done as part of the "zealous representation to protect constitutional rights of a criminal defendant"), and an "extraordinary circumstances" exception.

As a result of the elasticity of this standard, despite being on the books for a decade and a half, the issue has arisen in only one case here in Ohio, Ohio State Bar Assn. v. Stern.  A grievance was filed against Stern, so two investigators from the Office of Disciplinary Counsel came down to have a chat with him.  They must have sensed something, because they asked him if the meeting was being taped.  He said no, and the grievance was eventually dismissed.  A year later, the ODC found that Stern had in fact secretly videotaped the meeting, and filed a grievance against him.  The case would seem to clearly call for application of the 1997 opinion, but the court decided not to go there, primarily because of the absolutely bizarre circumstances of the case.  Stern was a county prosecutor, and the people who filed the original disciplinary complaint against him ran a company he was investigating for tax fraud.  He suspected, that the disciplinary complaint was politically motivated, and there was some reason for this:  back in 1980, the ODC had investigated him in another matter, and that investigation had been so devoid of substance and politically motivated that it led to reform of the disciplinary process.  Throw in a head injury that Stern had suffered as a result of a bike accident, and the court decided that under the unique circumstances of the case, there was "too much uncertainty over too many of the key details to allow us to find a violation."  The upshot was that in the only disciplinary case involving surreptitious recording by an attorney, the Supreme Court gave a pass to a guy who had secretly taped an interview with disciplinary counsel, and lied to them about it.

Interestingly, the court in Stern made no mention of the fact that the 1974 ABA opinion, which had served as the basis for the 1997 opinion, had itself been withdrawn by the ABA in 2001.  And while it took Ohio 23 years to adopt the ABA opinion, it took only 11 for us to abandon it:  last Friday, the Board withdrew the 1997 opinion, and adopted Opinion 2012-1, which holds that a surreptitious recording of a conversation by an Ohio lawyer is not inherently unethical, and thus not a "per se" violation of the disciplinary code.

Before you run down to Radio Shack to get your recording equipment, some caveats.  First, it's not unethical as long as it's legal in the jurisdiction.  In Ohio, of course, it's legal to record a conversation, as long as one party to the conversation consents to it.  That's not true everywhere; in Maryland, for example, both parties have to consent to it, as Linda Tripp found out.  (Bonus points if you remember who she was.  I'll wait right here while you Google it.)  Plus, the opinion rightly notes that secretly recording conversations with clients or prospective clients isn't consistent with the "overarching obligations" of "loyalty and confidentiality," and so, "as a basic rule, Ohio lawyers should not record conversations with clients without their consent."

The reason for the change is perhaps a sadder reflection on society than on the legal profession.  Basically, the ABA (and the Board, belatedly) recognized that secret recordings have become so prevalent that people have a diminished expectation of privacy in their own converations.

I suppose that's too bad, but we all have to adapt to changing times.  So if you see me over in the Justice Center and want to talk to me about something, make sure you speak clearly into my left front suit pocket.

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