Propriety of surreptitiously recording interviews of potential witness in a criminal case.
FACTS
The retained investigator for the public defender service in county X wishes to tape record an interview with a potential witness in a criminal case without the knowledge of that witness. The purpose of this surreptitious tape recording is to obtain impeachment material on the witness should the testimony of the witness be different at the trial than in the interview.
QUESTION
Is it ethically proper for an attorney or the attorney's agents at his or her direction to surreptitiously tape record interviews of potential witnesses in a criminal case?
ETHICAL RULES CITED
Arizona Rules of Professional Conduct, Supreme Court Rule 42, 17A A.R.S.:
ER 3.1. Meritorious Claims and Contentions
... A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
ER 4.1. Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by ER 1.6.
ER 4.3. Dealing with Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
ER 4.4. Respect for Rights of Third Persons
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
ER 8.4. Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;
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(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
RELEVANT PRIOR OPINIONS
1. Opinion No. 176A, dated September 21, 1965 – One attorney should not record surreptitiously a telephone conversation with another attorney to be later played back to his client.
2. Opinion No. 74-18, dated August 6, 1974 An attorney may not surreptitiously record a conversation with a witness, potential witness or potential adverse party. (Vacated by Opinion No. 75-13 of June 11, 1975.)
3. Opinion No. 74-35, dated November 5, 1974 – The committee opined, following its Opinion No. 74-18, that a county attorney or deputy county attorney cannot ethically cause or encourage police or other investigators to surreptitiously tape record a conversation with a witness or potential defendant. (Vacated by Opinion No. 75-13 of June 11, 1975).
4. Opinion No. 75-13, dated June 11, 1975 - The committee opined, modifying and vacating its Opinions Nos. 74-18 and 74-35, that the previous absolute prohibition against surreptitious tape recording should be subject to four exceptions permitting a lawyer to secretly record:
(a) “an utterance that is itself a crime, such as an offer of a bribe, a threat, an attempt to extort or an obscene telephone call”;
(b) "...a conversation in order to protect himself, or his client, from harm that would result from perjured testimony. In this category, however, it is important to note that the purpose of the secret recording is solely to provide a shield for the lawyer, or his client, and that this exception does not authorize secret recordings for the purpose of obtaining impeachment evidence or inconsistent statements.";
(c) "conversations with informants and/or persons under investigation simply as a matter of self-protection."; and
(d) conversations, etc., "where specifically authorized by statute, court rule or court order."
OPINION
The use of surreptitious tape recording by attorneys in Arizona is a question of interest to all criminal law practitioners, given the present realities of law enforcement practices. Unless the right to privacy restricts all surreptitious recording, the use of such devices should not be forbidden to the criminal defense bar.
Within Arizona (contrary to the law in some other jurisdictions), there appears to be no state or local prohibition against surreptitiously recording conversations where one party to that conversation agrees to such recording. A.R.S. S 13-3005(A) (2). Under federal law, surreptitious recording of conversations with one party consenting is also legal (18 U.S.C. § 2510 et seq.), although a long-standing Federal Communications Commission regulation forbids such recordings unless adequate notice is given to all parties by the use of an automatic tone warning device. Taped conversations obtained in violation of this FCC regulation have been held not to prohibit the introduction of such tapes. Battaglia v. United States, 349 F. 2d 556, 559 (9th Cir. 1965), cert. denied, 382 U.S. 955 (1965). The surreptitious recording of conversation appears to be legal in relation to in-person and telephonic conversations. Additionally, there is no question that both parties in a criminal case are entitled to interview potential witnesses. Rule 15, Arizona Rules of Criminal Procedure. For these reasons, the "legal rights" of a third person would not appear to be violated by surreptitiously tape recording an interview of a witness.
The prior Arizona ethics decisions on this subject matter were based on the Ethical Considerations and Disciplinary Rules in effect in this state prior to the substantial revisions made by Arizona Supreme Court Order on September 7, 1984, effective February 1, 1985. These provisions -- DR 1-102(A) (4) (prohibition against engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) and Canon 9 (avoidance of even the appearance of professional impropriety) -- can no longer provide the basis for prohibiting surreptitious recording of interviews. The ethical admonition to avoid the appearance of impropriety no longer is specifically included in the 1985 Rules. Although the pre-1985 Disciplinary Rule 1-102(A) (4) is substantially continued in Ethical Rule 8.4(c), the addition of new Ethical Rule 4.4 that a lawyer shall not use “methods of obtaining evidence that violate the legal rights" of third persons seems, by implication, to allow the legal surreptitious recordation of statements of witnesses. C. Wolfram, Modern Legal Ethics, Section 12.4.4, pp. 649-650 (1986).
The practicalities of the present day criminal justice system seem to be inconsistent with any continued prohibition against surreptitious recordation of a witness. More specifically, it is common practice for law enforcement agencies to surreptitiously record interviews and/or conversations in criminal investigations. The committee believes that a serious imbalance would be created by permitting law enforcement attorneys and their agents to use this device without allowing defense attorneys to do the same. Indeed, at least one court has found that this disparity constitutes an impermissible denial of equal protection of the law. Kirk v. State, 526 So. 2d 223, 227 (La. 1988). Additionally, ethics committees in other states which have recently considered this problem have concurred that fairness and the Sixth Amendment to the United States Constitution allow defense attorneys or their agents to surreptitiously tape record witnesses to the same extent accorded law enforcement personnel. See, Kentucky Opinion E-279, January, 1984; Tennessee Ethics Opinion 86-F-14(a), July 18, 1986.
It is also very common for both parties in a criminal proceeding to have an investigator or other third party present during interviews for the sole or substantial purpose of enabling the third person to testify to the substance of the conversations should the subject of the interview testify inconsistently. Obtaining the presence of an investigator or other third person at interviews to act as an impeachment witness at trial is an encouraged practice. During the interview, there is no requirement that the witness be warned of possible incrimination, the need for counsel, or notice that the investigator/third person may testify as an impeachment witness at trial should the witness testify inconsistently.[1]
Section 4-4.3 Relations with Prospective Witnesses
“b) It is not necessary for the lawyer or the lawyer's investigator, in interviewing a prospective witness, to caution the witness concerning possible self-incrimination and the need for counsel.
“d) Unless the lawyer for the accused is prepared to forego impeachment of a witness by the lawyer's own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case in order to present such impeaching testimony, the lawyer should avoid interviewing a prospective witness except in the presence of a third person.”
The ABA standards have not yet been adopted or approved by the Arizona Supreme Court, but we find them persuasive on this issue.
Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.
©State Bar of Arizona 1990
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[1]The ABA Standards relating to the Administration of Criminal Justice (Second Edition), states, in pertinent part:
There is a distinction between investigator interviews and surreptitious taping in that, in the former case, the person being interviewed is more likely to infer that what he is saying to the investigator may be taken down for later use. However, the practical considerations in favor of taping, whether by the attorney or his investigator, lie in the greater accuracy of this method.
Considering the Rules of Professional Conduct currently in effect and the realities of present day practices, we must broaden the sentiment expressed in our prior Opinion No. 75-13 that an ethical prohibition against the surreptitious recording of witness interviews in a legal manner cannot be established as a blanket rule. That opinion sought to limit surreptitious recordation to "rare cases where the attorney has first satisfied himself that there are compelling facts and circumstances justifying the use of a secret recording". While we agree that it is a worthy practice to protect the privacy rights of Arizona citizens by prohibiting surreptitious recording, or limiting surreptitious recording of witnesses to instances where there are compelling circumstances that is a matter which more properly must be addressed by the Arizona legislature or the Arizona Supreme Court in its interpretation of the Arizona Constitution. If there are no legal restrictions against one-party consensual recording, and law enforcement agents are additionally allowed to engage in such activities, then the criminal defense lawyer, in fulfilling his or her legal and ethical duties to zealously represent a client, must equally be permitted to develop important impeachment evidence through this method. The importance of preventing persons from twisting the truth may, depending on the circumstances, be necessary to the effective representation of a criminally accused client. Therefore, the distinction drawn in our Opinion No. 75-13 between surreptitious recording to protect against perjury (which the opinion permitted) and surreptitious recording for impeachment purposes (which the opinion prohibited) does not appear to have any basis in the present Rules of Professional Conduct. The result of our present opinion seems in perfect accord with our Opinion No. 75-13 because a surreptitious recording would ordinarily be used only when the witness, under oath, makes a statement contrary to the tape-recorded testimony, in possible violation of the perjury and/or false swearing statutes. See, A.R.S. 5 § 13-2702 et seq.
Accordingly, we conclude that the recording of witness conversations by criminal defense attorneys or their agents, with the consent of only one party to the conversation, may be ethically permissible either for the purpose of protecting against perjury or for the purpose of obtaining impeachment material should the testimony of the witness be different at trial.