by Hershel R. Chapin
In Texas, where there is actual or anticipated litigation, an attorney who is a party to a telephone conversation is permitted to gather evidence of opposing party admissions by recording the conversation. See generally, 18 U.S.C. § 2511(2)(d); Tex. Penal Code § 16.02; Alameda v. State, 235 S.W.3d 218, 223 (Tex. Crim. App. 2007); Becker v. Computer Sciences Corp., 541 F. Supp. 694, 702 (S.D. Tex. 1982). Where such recorded party admissions are relevant, they generally are discoverable, admissible and constitute business records. Tex. R. Civ. P. 192.3(b); Tex. Code Crim. Proc. § 39.14(a) Tex. R. Evid. 401, 402, 801(e)(2) & 803(6).
Failure to anticipate the possibility of undisclosed telephone recordings could give rise to inadvertent disclosures either by attorneys or by represented parties. Alternatively, the failure to make lawful, undisclosed recordings could cause important opportunities for evidence preservation to be missed, and could engender harm to clients’ legal interests. Also, the failure to respond appropriately to an unlawful, undisclosed telephone recording could prejudice clients’ legal interests.
The ethical dimensions of making such undisclosed telephone recordings have shifted during the past decade. Opinion No. 575 (Nov. 2006), issued by the Professional Ethics Committee for the State Bar of Texas, is arguably the most recent authority directly on point. This non-binding advisory opinion concluded that, under the current versions of the Texas Professional Rules of Disciplinary Conduct, absent an affirmative act of deception and absent an unlawful purpose, a lawyer in Texas is permitted to make (and use) an undisclosed recording of telephonic conversations between the lawyer and another person in Texas (who could be the lawyer’s own client). Opinion No. 575 expressly reversed over 25 years of precedent emanating from Ethics Committee Opinions No. 392 (Feb. 1978) and No. 514 (Feb. 1996). In so doing, and until the Texas Supreme Court weighs in on the issue, the Professional Ethics Committee has very likely dispelled the notion that non-disclosure of phone recordation by a recording attorney is inherently dishonest.
Thus, based on the current, applicable, Texas and federal authorities, it seems reasonably clear that, for a lawyer to be permitted to make undisclosed recordings of telephonic conversations with opposing parties, all of the following criteria must be met:
1. All parties to the phone conversation must be within and subject to the jurisdiction of Texas;
2. The recording attorney must be a party to the conversation and must consent to the recording;
3. The recording attorney must not engage in dishonesty with regard to the recording of the conversation; the recording attorney must not create the false impression that the conversation is not being recorded;
4. The recording attorney must not have an “unlawful purpose”;
5. The recording attorney must not otherwise be prohibited by state or federal law from recording the conversation (e.g., certain telephonic court proceedings cannot be recorded without permission of the Court and/or other parties).
What happens when a recording attorney in a situation matching the above criteria is confronted with the question: “Are you recording this conversation?” Obviously, the intrepid lawyer would be prohibited from responding with or suggesting the answer is: “No.” However, it seems that under a strict interpretation of the legal authorities considered in Opinion No. 575, our hypothetical lawyer would not be prohibited per se from making an honest, but evasive response. An honest, but evasive response might arguably be appropriate pursuant to Texas Disciplinary Rule of Professional Conduct 1.05(b). As a simple, added precaution against complications arising from allegations of dishonesty, it might be advisable to include a disclaimer for phone calls stating: “This call may be recorded.”
The potential penalties for making undisclosed recordings in violation of the Texas Penal Code, 18 U.S.C. § 2511, or other jurisdictions’ applicable recording laws should be foremost in the mind of the Texas lawyer who feels inclined to record a phone conversation with an opposing party. Such penalties could include injunction, exclusion of evidence, civil and disciplinary liability, sanctions, fines, punitive damages and even criminal liability. See e.g. Tex. Civ. Prac. & Rem. Code § 123.004; Tex. Penal Code. § 16.02(f); Tex. Code Crim. Proc. §§ 18.20 & 38.23(a).
Furthermore, prior to making an undisclosed phone recording, one must consider that such an act cannot be undone without potentially generating liability exposure vis-a-vis spoliation of evidence. Tex. Penal Code § 37.09(d)(1); Tex. R. Civ. P. 215.
Under specific circumstances, the words spoken over the telephone to a lawyer in Texas could legally and ethically be replayed in a courtroom. Lawyers would be well advised to familiarize themselves and their clients with the applicable rules (including the five-factor criteria), benefits, risks, and penalties pertaining to lawfully and unlawfully undisclosed recordings so as not to get “hung up.”
Hershel R. Chapin is an attorney with the law firm of Weinstein, Pinson & Riley, P.S. He may be reached at email@example.com.