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Ethics: Surreptitious recording – if legal, is it ethical?

Ethics: Surreptitious recording – if legal, is it ethical?

By Gino Dal Pont

Ethics Practice & Procedure 

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Changes in technology may alter expectations when it comes to recording conversations but it doesn’t mean surreptitious recording by lawyers is defensible.

Tips
  • It has been said that lawyers’ ethical obligations should exceed legal obligations. 
  • There is little in Australian professional pronouncements that directly addresses the ethical position of lawyers surreptitiously recording conversations.
  • With the modern ease of recording conversations, there may be reason for lawyer restraint in this context.

There is no question that much of our law, whether generated from parliaments or the judiciary, is informed by a strong ethical dimension. We also know, however, that what is legal behaviour is not, simply for this reason, necessarily ethical behaviour. It was once observed that a claim to professional status is that the standards expected of members exceed those that are externally imposed.1 More recently, an English judge has stated in the same vein that “an enduring feature of professional codes of conduct is that they set higher standards for their members than the general norms of society”.2

In an LIJ ethics column some eight years ago,3 I noted that no Australian regulatory body had issued a statement on the ethics of lawyers recording a conversation without the consent of other participants thereto. In a decision handed down in April 2020, in a high profile case (chiefly by reason of the backdrop of the lawyer in question being charged but acquitted of killing his wife), one of the factors informing the Western Australian Supreme Court’s decision to strike off the lawyer was that he had illegally recorded conversations with his late wife by way of dictaphone.4 That Western Australia (as well as South Australia) outright criminalises such behaviour5 clearly functions to make it unethical for a lawyer to pursue. 

Victoria, conversely, does not make it illegal for a person, including a lawyer, to record a private conversation without other participants’ consent provided that the person is a party to the conversation.6 Whether or not this is ethical is a separate inquiry, and one that has been the subject of differing views overseas. In the United States, for instance, the immediate wake of Watergate saw the American Bar Association issue an opinion that “no lawyer should record any conversation whether by tapes or other electronic device without the consent or prior knowledge of all parties to the conversation”.7 Yet, via another ethics opinion, some 27 years later, it changed its tone, viewing undisclosed recording as not unethical per se unless prohibited by statute.8 Part of the justification for this shift in approach appears from the following extract:9

“Devices for the recording of telephone conversations on one’s own phone readily are available and widely are used. Thus, even though recording of a conversation without disclosure may to many people “offend a sense of honor and fair play”, it is questionable whether anyone today justifiably relies on an expectation that a conversation is not being recorded by the other party, absent a special relationship with or conduct by that party inducing a belief that the conversation will not be recorded”.

The technology to which the opinion refers has nothing if not advanced in the ensuing two decades. Witness the ease with which, in our COVID-19 world, Zoom conversations can be recorded, including video-recorded. 

At the same time, though, it may be queried whether changes in technology, while they may alter expectations of some in society when it comes to recording of conversations (and indeed broader notions of “big brother” surveillance), should mark surreptitious recording by lawyers as defensible on the ethical radar. After all, it stands to reason that a person (including a lawyer) would rarely surreptitiously record a conversation without seeking to secure some potential advantage, whether for a client or personally. And the assumption underscoring this is that such an advantage may not be forthcoming should the other party to the conversation know that it is being recorded. 

Matters a lawyer may be inclined to record, without consent, are likely to be of some (legal) significance, rather than mere tittle tattle. In an adversary context, in particular, those matters, it could be argued, are unlikely to come within persons’ expectations of being recorded (even assuming that people indeed have such expectations). Perhaps the ease with which recordings can nowadays be made, where these are legal, presents not as an invitation to bring surreptitious recording within the ethical fold but, in line with ethical expectations exceeding legal ones, a sense of restraint. ■


Gino Dal Pont is Professor, Faculty of Law, University of Tasmania.

  1. H Benson, “The Profession of the Future” (1979) 53 ALJ 497 at 500.
  2. Solicitors Regulation Authority v Wingate [2018] 1 WLR 3969 at [62] per Jackson LJ.
  3. GE Dal Pont, “On the Record” (August 2012) 86 LIJ 72.
  4. Legal Profession Complaints Committee v Rayney [2020] WASC 131.
  5. Surveillance Devices Act 2016 (SA) s4; Surveillance Devices Act 1998 (WA) s5.
  6. Surveillance Devices Act 1999 (Vic) s6. The position is similar in the NT and Qld: Surveillance Devices Act 2007 (NT) s 11; Invasion of Privacy Act 1971 (Qld) s43.
  7. ABA, Ethics Op 337 (10 August 1974) (although expressly exempting prosecuting attorneys).
  8. ABA, Ethics Op 01-422 (24 June 2001).
  9. Note 8 above, p4 (footnote omitted).

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