Masking Tapes: An Analysis of the Law of Secret Recording in New York

Recording telephone and in-person conversations, which once required advance planning and special equipment, is now both simple and widely available on a range of portable devices. Many lawyers recognize that tapes can be invaluable to a litigant in the truth-finding process. Yet, although taping is legal in New York and most other states so long as one party to the conversation consents to the taping, it remains murky whether and when a New York lawyer can ethically tape without advance disclosure. Indeed, as two recent New York cases demonstrate, despite the burgeoning use of surreptitious recordings by members of the public, there is little tolerance for lawyers who — albeit legally — surreptitiously record third parties without sufficient justification (or even claim that they did so when they hadn’t).

Background

New York law permits recording of conversations (in person, by phone, by computer, or otherwise) so long as one party to the conversation consents. N.Y. Penal Law §250. New York is in the distinct majority in adhering to the one-party consent rule; only 12 states generally require all parties’ consent for lawful recording. Nevertheless, because the “all-party consent” states include neighboring jurisdictions (Connecticut and Massachusetts) and large jurisdictions in which New York lawyers are frequently involved (Florida, Illinois, Pennsylvania, and California), New York lawyers need to be aware of the law outside of New York when advising clients regarding surreptitious taping.

Although surreptitious taping if done by one of the parties has been legal for decades, before 1993 ethics opinions from New York considered it underhanded and deceptive for an attorney in non-criminal matters to tape others without their consent. See N.Y. State Bar Op. 328 (1974); NYCLA Op. 552 (1967); N.Y. City Op. 1980-95. The American Bar Association took the same view. ABA Op. 337 (1974). That universal disapproval changed in 1993 when the New York County Lawyers Association (NYCLA), referring to the ease of recording and a change in public “normative standards,” opined that it was now generally ethical for an attorney to record others (including clients, opposing lawyers, and witnesses). It rejected “former pronouncements” regarding the unfairness of secret recordings as “no longer viable in today’s day and age” and noted that “a party to a telephone conversation should reasonably expect the possibility” that a call could be recorded. Nevertheless, the opinion warned that a lawyer cannot lie about the taping and urged lawyers to consider the “practical effect” of secretly taping before proceeding, including (for example) a client’s potential negative reaction to learning of the secret taping. NYCLA Op. 696.

The NYCLA opinion was not widely endorsed. In 1995, the City Bar rejected it and re-affirmed that it was generally unethical secretly to record conversations with opposing counsel. N.Y. City Op. 1995-10. However, in 2001, the ABA essentially agreed with NYCLA, finding that nonconsensual recording of conversations, when permitted by the law of the jurisdiction where the recording occurs (i.e. in one-party consent states), is not inherently unethical and that taping should be permitted except “where it is accompanied by other circumstances that make it unethical” such as affirmative misrepresentation. The ABA opinion was split as to whether a lawyer could secretly record a conversation with the lawyer’s client, but stated that doing so was “inadvisable.”

In June 2003, the City Bar again refused to adopt the more permissive position taken by NYCLA and the ABA. It found that undisclosed taping still “smacks of trickery” regardless of changes in societal attitudes. The City Bar adhered to its prior opinions that undisclosed taping as a routine practice is ethically impermissible, and announced as the new standard that a lawyer could ethically record only where the lawyer “has a reasonable basis for believing that disclosure of the taping would significantly impair pursuit of a generally accepted societal good.” City Bar Op. 2003-02.

In announcing this standard, the City Bar did not attempt to define the universe of “generally accepted societal goods” that would justify surreptitious taping by a lawyer, but noted that the standard “will often be easy” to meet in situations where: (a) the lawyer seeks to document criminal or other “significant misconduct;” (b) threats have been made against the attorney or client or (c) the attorney has reason to believe that a witness “may be willing to commit perjury.” By contrast, it would not be met in “routine” situations where the motivation is to obtain an “accurate record” of what was said or (at least with respect to persons who are not potential witnesses) “to guard against the possibility of a subsequent denial.” Id. The City Bar opinion did not address why it was presumptively permissible for an attorney to create an historical record of a phone call by taking verbatim notes without the other party’s knowledge or consent, but it was unethical to create a similar record by taping.

The City Bar’s “societal good” approach was criticized for its subjectivity, particularly in comparison with the more easily followed rules announced by NYCLA and the ABA. As Judge David Trager wrote in 2006:

[W]ho is to decide how to define “a generally accepted societal good,” or even when a legal representative has a “reasonable basis” for believing that her client’s interests align with the societal good? Furthermore, why should that question even matter? … How can lawyers avoid the difficulties that will result from such a vague rule when they give their clients advice, or advocate and collect evidence on a client’s behalf?

Trager, “Do Bar Association Ethics Committees Serve the Public Public or the Profession? An Argument for Process Change,” 34 Hofstra Law Review 1129, 1145 (2006).

Accordingly, a New York practitioner today could point to opinions generally barring taping (State Bar); generally permitting it (NYCLA and ABA); and permitting it only under the “pursuit of a generally accepted societal good.” (City Bar). Interestingly, it appears that many New York practitioners view the City Bar opinion as the prevailing authority. For example, in a recent “Attorney Professionalism Forum” in the New York State Bar Association Journal (November/December 2015 at p. 51), the authors described the ethical landscape for New York attorneys as forbidding the secret recording of communications with opposing counsel “absent some very unusual circumstances.” Id. at 53.

Recent New York Cases on Surreptitious Taping

Two recent cases confirm that the “generally accepted societal good” standard remains elusive.

Bermejo

In Bermejo v. New York City Health and Hospitals Corp., 135 A.D.3d 116 (2d Dept. 2015), the lawyer for the injured plaintiff surreptitiously videotaped an independent medical examination (IME) conducted by an orthopedist retained by the corporate defendant. The lawyer did not disclose the existence of the tape until trial when he sought to use the tape to impeach the orthopedist’s testimony that the IME took more than a few minutes.

The plaintiff’s lawyer argued that he videotaped the IME because, at an earlier IME with the same doctor, the doctor had falsely claimed that the lawyer had engaged in obstructionist behavior during the examination. The lawyer added in an affidavit that he had “a duty to expose the digital recording to expose [the doctor] as a liar and to do otherwise would have been an abrogation of his duties as an officer of the court.” Id. at 130.

Both of these justifications would appear to pass muster under the NYCLA and ABA opinions. With regard to the City Bar standard, was it a “societal good” for the lawyer to be able to disprove what he anticipated would be allegations of misconduct against him during the examination? Was it a “societal good” for the lawyer to be able to argue that the doctor was lying when he claimed the examination was more extensive than it really was, especially since the issue would be effectively unresolvable in the absence of a recording?

Rejecting any claim that a lawyer is permitted to secretly record an IME, the Second Department found that a secret video “cannot be regarded as an ‘appropriate tool’ or an activity that attorneys should feel free to engage in ‘all the time’.” The court further noted that the primary justification proffered — that counsel needed to protect himself against allegations of obstruction — was not compelling because counsel, as a non-party, had no need for protection against false accusations. Id. at 145. The court did not specifically consider the effect of City Bar 2003-2 on the analysis, but rather focused on the lawyer’s failure to provide notice to defense counsel of the taping, let alone his failure to provide notice and obtain approval from the court, as well as his non-disclosure of the video before trial and his use of it at trial. As a sanction, the court ordered the plaintiff’s counsel to pay the defendants’ costs “they incurred in participating in the first trial … as well as the costs defendants incurred in making and litigating” the appeal and related motions.

Interestingly, the record in Bermejo is silent as to whether the plaintiff-client was aware of his lawyer’s recording and the court did not discuss whether the recording by plaintiff’s counsel violated New York’s one-party consent law by recording a conversation to which the lawyer was not a participant, but merely an observer. If the client neither authorized the taping nor consented to it, it is an open question whether plaintiff’s counsel — who was entitled to be present at the interview, but who was not the subject of the IME — should be considered a “party” to the conversation.

Although the Bermejo court was obviously unhappy that the plaintiff’s lawyer had failed to comply with his discovery obligations and sought to engage in trial by ambush to try to discredit the examining doctor’s analysis, it is not clear that the court correctly concludes that a lawyer accused of prior misconduct in a case has no interest in protecting himself against allegations of similar misconduct. Indeed, if a lawyer has the ability to disclose otherwise confidential information to the extent the lawyer believes necessary to defend the lawyer “against an accusation of wrongful conduct,” see Rule 1.6(b)(5)(i), does it not follow that a lawyer can use lawfully obtained, non-confidential information to achieve the same goal?

Adorama

Southern District Magistrate Judge James Francis confronted a different surreptitious taping issue in Alexander Interactive, Inc. v. Adorama, Inc., 2014 WL 2968528 (S.D.N.Y. 6/26/2014). In an obviously contentious case, defendants’ counsel wrote to the plaintiffs’ counsel to advise that, during an on-site visit to plaintiffs’ office, his expert had concluded that plaintiffs’ computer hard drives had been wiped and backup information could not be obtained. The plaintiffs’ lawyer disputed these assertions by email and, as proof, said she had “everything taped” with the expert (which she claimed was “allowed” by New York law), that she would not allow defendants to “sully my clients with your fictions” and that she intended to use the recordings to oppose “some unmeritorious motion” for non-production of the requested computer data.

Defendants’ counsel brought the issue of the secret tape recording, together with complaints regarding plaintiffs’ counsel’s “intemperate language,” to the Magistrate’s attention. In response, plaintiffs’ counsel confessed that she was bluffing, that she had not actually made recordings and that her goal was “to compel honest conduct by [defendants’ counsel], his clients and their experts.”

The court nevertheless considered the surreptitious taping issue. It noted that — had counsel actually taped the expert — “she would likely have violated” Rule 8.4(c) by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. Citing City Bar Op. 2003-2, the court went on to reject plaintiffs’ counsel’s suggestion that the taping would have furthered a “generally recognized societal good” by compelling an honest recitation of what occurred:

By this interpretation, the exception would swallow the rule, as counsel could always represent that their intent in making a surreptitious recording was to keep the adversary honest. The Committee [opinion] provides much narrower examples of where undisclosed taping might be acceptable.

The court then concluded that counsel’s false claim that she had recorded the conversations was itself an acknowledgement of deceitful conduct and publicly “admonished” her to “abide by her duty to deal with opposing counsel with candor.” The decision was affirmed on appeal to the district court.

It is not clear from the opinion whether, or to what extent, the plaintiffs’ counsel claimed reliance on the NYCLA or ABA opinions as a justification for her actions. Nor is it clear whether counsel sought to argue that taping was justified because implicit “threats” against the attorney or the client — one of the criteria referenced by the City Bar in its 2003 opinion — could be said to have been made regarding the role of the attorney or her client in the spoliation of relevant documents.

There is no indication that the lawyers in either Bermejo or Adorama were referred for disciplinary action. One may infer from the existence of contradictory ethics opinions in New York that a disciplinary prosecutor would have trouble demonstrating that secret taping unaccompanied by other misrepresentation is per se deceitful; indeed the City Bar cautioned in its 2003 opinion that, because it is difficult, if not impossible, to catalog all circumstances that might justify taping in pursuit of a societal good, a lawyer “should not be subject to professional discipline” if the lawyer has a reasonable basis for believing that justifying circumstances exist.

Conclusion

Notwithstanding the widespread availability of easy-to-use portable recording devices and the explosive potential benefits to be derived in litigation from the making and use of surreptitiously recorded tapes, a New York lawyer who chooses secretly to tape conversations with others with the goal of self-protection, insuring historical accuracy or keeping an adverse party, counsel or witness “honest” runs an appreciable risk that a court will look with skepticism on the practice, despite its legality. Put simply, a lawyer should not assume that surreptitious taping is “fair game” in New York or that advisory ethics opinions considering it “trickery” have become an anachronism.

John B. Harris is a litigation partner in the law firm of Frankfurt Kurnit Klein & Selz PC and is a member of the firm’s Professional Responsibility group.

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