Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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May an attorney record telephone conversations?
Rule 1 of the Rules of Professional Conduct of the State Bar.1
Business and Professions Code sections 6067-6131.
A California attorney has requested the opinion of this Committee with respect to the following related matters:
1. The circumstances under which an attorney may ethically record a telephone conversation with either another attorney or a layperson;
2. The circumstances under which an attorney may use the recording or the transcript of such a recording; and,
3. The impact of the ethical rules of our profession upon government officers who are also members of the bar making and using such telephonic recordings in the area of public law.
In 1947 the Federal Communications Commission, after hearings, reached the conclusion that the use of telephone recording devices should be permitted. However, in view of the F.C.C.'s appreciation of the importance and desirability of privacy in telephone conversations, the F.C.C. was of the opinion that the use of telephone recording devices should be permitted only when measures were in effect to assure notification to the parties that their conversation was being recorded (11 F.C.C. 1033, 1050). Later, the Commission issued an order, subsequently amended, authorizing the use of recording devices in connection with interstate telephone service subject to the conditions (1) that the use be accompanied by adequate notice to all parties to the telephone conversation that the conversation was being recorded, (2) that such notice be given by use of an automatic tone warning device, and (3) that the automatic tone warning device be furnished, installed and maintained by the telephone company (such device being hereafter called a "recorder-connector").
The above F.C.C. order also required telephone companies to cancel tariffs then in existence which had the effect of barring use of recording devices in connection with interstate telephone service under conditions specified in its order, and further ordered the telephone companies to file tariffs with the F.C.C. which authorized the use of recording devices in connection with interstate telephone service under the conditions specified in the order and described above (12 F.C.C. 1005, 1008).
Pursuant to the parts of this F.C.C. order directed to the telephone carriers, the companies filed tariffs with the F.C.C. which contained the following two provisions:
1. No equipment, apparatus, circuit or device not furnished by the telephone company shall be attached to or connected with facilities furnished by the telephone company whether physically, by induction or otherwise, except as provided in the tariffs; and
2. Customer-provided voice recording equipment may be used in connection with interstate telephone service only if physically connected to a recorder-connector which is provided by and is physically connected to the telephone line by the telephone company and which emits a beep tone as required by the F.C.C. order.
Telephone companies in California have filed similar tariffs with the California Public Utilities Commission applicable to intrastate service.
In California, tariffs have the force and effect of law governing the use of the service and are binding upon the utility user. (Hischemoeller v. Nat. Ice etc. Storage Co. (1956) 46 Cal.2d 318; Cole v. Pacific Tel. & Tel. Co. (1952) 112 Cal. App.2d 416.)
The interstate tariffs providing for the beep tone were imposed by the F.C.C., not by the telephone companies. Even when a utility initiates a proposed regulation by filing it with the Public Utilities Commission of California, for example, the regulation (or tariff or schedule) must be "approved" by the appropripriate regulatory commission which can suspend, cancel or change it before it becomes effective. If any interested party is dissatisfied with the reasonableness of a tariff and cannot get the appropriate regulatory commission to change it, he may seek a review by the appropriate court. However, generally speaking, as long as the tariff remains in effect it cannot be collaterally attacked in proceedings, and violation of the lawful and effective tariffs may be enjoined or may result in discontinuance of telephone service. (See Ambassador, Inc. v. United States (]945) 325 U.S. 317, 325 [65 S.Ct. 1151]; Cole v. Pacific Tel. & Tel. Co., supra, 112 Cal.App.2d at p. 420.)
For some years telephone directories in California have carried information and a warning concerning the use of a voice recording signal. For example, on page 36 of the Los Angeles Central Telephone Directory issued in June 1965 there appears the following:
"If you hear a short high "Beep" tone every 15 seconds or so, it means that the person with whom you are talking is recording your conversation. This signal is produced by recorder-connector equipment furnished by the Telephone Company. Use of a recorder on the telephone line without this equipment is prohibited by the Company's tariffs."
In 1951 the Committee on Legal Ethics of the Los Angeles County Bar Association issued its opinion No. 182 (1951)2 in which the Committee concluded: (l) it was ethical for an attorney to record a telephone conversation if the other party was first advised and did not object and, in an interstate conversation, if the rules of the F.C.C. were followed; (2) professional standards required that the other party be informed of the recording before any important words were spoken; and (3) if no improper or unfair use was thereafter made of the recording of the conversation, and if the recording were kept merely to refresh the attorney's memory or to aid the attorney in the proper and ethical performance of the attorney's duties, it was not unethical for the attorney to make a recording of the conversation without advising the other party of such use.
Opinion No. 182, supra, did not consider the background of the F.C.C. order, the effect of the interstate tariffs, or the effect of the tariffs filed with the Public Utilities Commission of California.
At the 1954 Conference of State Bar Delegates, the Sacramento County Bar Association proposed a resolution that the Board of Governors of the State Bar adopt a rule of professional conduct to provide that it should be professional misconduct for one lawyer to record another lawyer's conversation on the telephone without announcing that the conversation is being recorded and without complying with the rules of the F.C.C. regarding the recording of conversations. The resolution was referred to a Conference Committee which made a report to the 1955 Conference of State Bar Delegates. That Committee, among other findings, concluded that there did not appear to be any ethical distinction between the proposed requirement relating only to the recording of telephone conversations between attorneys and the recording by a lawyer of his conversations with a layperson; and that there was no necessity for the proposed resolution in view of the fact that the recording of a telephone conversation, without a tone warning signal by a device connected to the facility of a telephone company, was already illegal under both California and federal law. For these reasons the Committee recommended that the 1954 State Bar
Conference Resolution No. 59 not be adopted. There were 12 members of the State Bar in that Committee, only one of whom dissented. The report was approved by the Conference of State Bar Delegates on September 12, 1955.
The Committee on Legal Ethics of the Los Angeles County Bar Association in Opinion No. 272 (1962)3 concluded that the recording by an attorney of his conversation with another attorney, without a beep tone, was in violation of federal and California law, and was unethical. That opinion further stated that, to the extent opinion No. 182, supra, was contrary, it no longer represented the view of the Committee.
Rule 1 of the Rules of Professional Conduct of the State Bar
commends the Canons of Ethics of the American Bar Association to
its members. Portions of these canons provide as follows:
.....
"The conduct of the lawyer before the Court and with other lawyers should be characterized by candor and fairness."
"It is unprofessional and dishonorable to deal other than candidly with the facts in taking the statement of witnesses, in drawing affidavits and other documents, and in the presentation of causes." ([Former] canon 22.)
"[The lawyer]... should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice." ([Former] canon 29.)
"... But above all a lawyer will find his highest honor in a deserved reputation for fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen." ([Former] canon 32.)
"It is the duty of a lawyer to preserve his client's confidences. This duty outlasts the lawyer's employment, and extends as well to his employees; and neither of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantage of the lawyer or his employees or to the disadvantage of the client, without his knowledge and consent, and even though there are other available sources of such information." ([Former] canon 37.)
An attorney who would, in the regular course of his practice, record telephone conversations, without the use of a recorder-connector which emits a "beep" tone, would do so presumably for the purpose of not advising the other party to the conversation that the conversation is being recorded. The public policy represented by the F.C.C. order and by the telephone company tariffs is against such a practice and, therefore, it would be unethical for an attorney to engage in such a practice.
The Committee has considered the question of why it would not suffice if the person making the recording stated in the conversation, before any important words were spoken, that it was being recorded, and obtained the consent of the other person involved in the recording. It is common knowledge to anyone coversant with tape recordings that this portion of a conversation could be recorded on one tape where an inocuous conversation would follow and then be dubbed in or re-recorded as a part of a very confidential conversation where the same person, who was then being recorded, was not in any way advised of the recording, nor his consent obtained thereto. Considerations of this nature undoubtedly led to the promulgation of the rules and regulations which required a recorder-connector which emits a "beep" tone every 15 seconds so there can be no question but what both parties to the entire conversation are aware of the fact that a recording is being made.
If an attorney were to record a telephone coversation with another attorney or with a layperson without the use of a "beep" tone to protect the interests of his client he would, since such an act is contrary to law, be acting contrary to [former] canon 15 of the Canons of Ethics of the American Bar Association which provides, in part:
"In the judicial forum, the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him, for any client, violation of law or any manner of fraud or chicane. He must open his own conscience and not that of his client." (Emphasis added.)
1. The are the circumstances under which an attorney ethically may record a telephone conversation with either another attorney or a layperson.
In view of the F.C.C. order and the tariffs filed covering both interstate and intrastate telephone service, the recording of a telephone conversation, without the use of the tone warning device required by the F.C.C. order and by the telephone company tariffs, would be in violation of the law.
Because of the tariff prohibiting recording of calls without the "beep" tone, and because of the publicity in telephone directories of the purpose of the "beep" tone, the users of telephones have the right to assume that, unless there is a "beep" tone, a call is not being recorded. Therefore, recording a telephone conversation without the "beep" tone not only would be contrary to law, but would also be deceptive and misleading.
A minority of the Committee was of the opinion that, in addition to using the recorder-connector with a "beep" tone in recording any telephone conversation, an attorney, to properly comply with ethical standards, should further be required to advise the other party to the conversation, before any important words were spoken, that the conversation was being recorded.
2. The circumstances under which an attorney may use the recording or the transcript of such a recording.
With respect to this second question, the Committee is of the opinion that, if the recording is made with the use of the "beep" tone in the manner prescribed by the F.C.C. order and the tariffs of the telephone companies, its use would appear to be governed by the rules applicable to any other information or evidence of the same class in the possession of an attorney.
3. The impact of the ethical rules of our profession have upon government officers who are also members of the bar making and using such telephonic recordings in the area of public law?
The statutory rules with respect to the duties and breaches of duties by attorneys (Bus. & Prof. Code, Sections 6067-6131), the Rules of Professional Conduct and the [former] Canons of Ethics of the American Bar Association make no distinction between public and private attorneys. This Committee knows of no reason why the ethical rules applicable to attorneys in private practice should not apply to attorneys in government service, whether they be district attorneys, attorneys general, city attorneys, county counsel, or other public officials. (See In re Lord (1959) 255 Minn. 370 [97 N.W.2d 288], State v. City of Kansas City, Kansas (1960) 186 Kan. 190 [350 P.2d 37].)
With respect to the conduct herein considered, the same rules and standards should be applicable to all attorneys.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 [PUBLISHER'S NOTE: A complete revision of the Rules of Professional Conduct was approved by the Supreme Court effective January 1, 1975. (See (1975) 14 Cal.3d Rules 1 and "Cross Reference of Present Rules of Professional Conduct to Former Rules of Professional Conduct," in Part III.D.)]
2 Published in 27 Los Angeles Bar Bulletin 70 (October 1951).
3 Published in 31 Los Angeles Bar Bulletin 405 (August 1964).
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