Summary of Opinion: In the Matter of An ANONYMOUS MEMBER of the SOUTH CAROLINA BAR (Supreme Court of South Carolina, May 7, 1991)

Factual and Procedural Background

This order revisits the question whether an attorney may electronically record a conversation without the knowledge and consent of all parties. The Court recounts two prior disciplinary matters bearing on the issue:

In In re Anonymous Member of the South Carolina Bar, 283 S.C. 369, 322 S.E.2d 667 (1984), an attorney retained by a family member to investigate an automobile accident telephoned the other driver (who was unrepresented), identified himself simply as the injured family member's cousin (without advising he was an attorney), secretly recorded the conversation, and later sought to use the recording at disposition. After the propriety of using the tape was questioned the attorney withdrew; the case settled; a disciplinary complaint was filed; the Court found misconduct under DR 1-102(A)(4) for recording without the knowledge and consent of all parties.
In In re Warner, 286 S.C. 459, 335 S.E.2d 90 (1985), an attorney arranged for a client to carry a concealed recording device into a conference between the client and a family court judge. The attorney justified the recording as a means to obtain "hard evidence" based on statements his client had made about the judge. The Court rejected that justification, stating complaints about judges should be filed with the Judicial Standards Committee and calling secret recordings "reprehensible and impermissible."

The present order addresses a similar issue: whether an attorney may use a recording device without prior knowledge and consent of all parties as an alternative means of taking notes. The Court reaffirms its prior rulings and states the rule to be applied henceforth.

Legal Issues Presented

Whether an attorney may electronically record a conversation without the knowledge and consent of all parties to the conversation.
Whether an attorney may use a recording device without prior knowledge and consent of all parties as an alternative means of taking notes.

Arguments of the Parties

Attorney's Arguments

In In re Warner, the attorney contended that statements made to him by his client concerning the family court judge left him with no alternative but to assist his client in obtaining "hard evidence" to substantiate the claims.
The opinion does not provide a detailed account of other parties' legal arguments in the matters summarized or in the present proceeding.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Anonymous Member of the South Carolina Bar, 283 S.C. 369, 322 S.E.2d 667 (1984)	That secretly recording a conversation with an adversary or potential adversary without the knowledge and consent of all parties constitutes misconduct under DR 1-102(A)(4).	The Court relied on this case to hold that the attorney's secret recording was misconduct and to support the reaffirmation that attorneys shall not record conversations without prior knowledge and consent.
In re Warner, 286 S.C. 459, 335 S.E.2d 90 (1985)	That it is reprehensible and impermissible for an attorney to secretly record another attorney or another person; complaints about members of the judiciary should be filed with the Judicial Standards Committee.	The Court cited Warner to reject the attorney's justification for secret recordings and to reinforce the rule prohibiting secret recordings irrespective of claimed necessity.
ABA Comm. on Ethics and Professional Responsibility, Formal Op. 337 (1974)	That, with certain exceptions, it is an ethical violation for an attorney to record conversations of any persons without prior knowledge and consent of all parties to the conversation.	The Court relied primarily on Formal Opinion 337 in finding that secret recordings are an ethical violation under the facts of the earlier disciplinary matter and in reaffirming the proscription against such recordings.
Sup. Ct. Rules, Rule 32, Code of Prof. Resp. DR 1-102(A)(4); now contained in S.C. App. Ct. Rules, Rule 407, Rules of Prof. Conduct 8.4(d)	Prohibition on conduct involving dishonesty, fraud, deceit or misrepresentation (basis for disciplinary findings).	The Court identifies DR 1-102(A)(4) as the disciplinary rule under which prior recording conduct was found to be misconduct and notes its current placement in the Rules of Professional Conduct.

Court's Reasoning and Analysis

The Court reviewed prior disciplinary decisions addressing secret recordings by attorneys and relied on those precedents and an ABA ethics opinion. It summarized the facts of the earlier cases showing attorneys secretly recorded conversations (one with an unrepresented adverse driver, another by arranging a concealed recorder in a judge's conference). The Court rejected justifications for secret recordings (such as an asserted necessity to obtain "hard evidence") and noted proper channels for complaints about judges (Judicial Standards Committee).

Based on the prior decisions and ABA Formal Opinion 337, the Court reasoned that the ethical prohibition against secret recordings applies broadly. The Court expressly reaffirmed its prior rulings and clarified that the prohibition applies irrespective of the purpose for making the recording, the intent of the parties, whether confidential information was discussed, and whether any party gained an unfair advantage from the recording.

Holding and Implications

Holding: The Court reaffirmed that an attorney shall not record a conversation or any portion of a conversation of any person whether by tape or other electronic device, without the prior knowledge and consent of all parties to the conversation.

Implications: The direct effect is a reaffirmed and broadly applied prohibition on attorneys secretly recording conversations. The rule is to be applied henceforth regardless of the recording's purpose, the parties' intent, the confidentiality of the discussion, or whether any party gained an unfair advantage. The opinion functions as a reaffirmation and clarification of existing disciplinary standards rather than announcing an entirely new principle.

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In the Matter of An ANONYMOUS MEMBER of the SOUTH CAROLINA BAR.

May 7, 1991. ORDER

The question as to whether an attorney can electronically tape record a conversation without the knowledge and consent of all parties to the conversation is not one of first impression in this Court. This Court has addressed this issue, at least within the parameters of the facts set forth in In re Anonymous Member of the South Carolina Bar, 283 S.C. 369, 322 S.E.2d 667 (1984). In In re Anonymous, an attorney was retained by a family member for the purpose of investigating an automobile accident in which the family member had been involved and injured. The attorney telephoned the driver of the other vehicle who was not represented by counsel. In addition to the attorney identifying himself to the driver of the other vehicle merely as the injured family member's cousin, without advising him that he was an attorney, he secretly recorded the conversation. Two years later, the attorney sought to use this tape recording at the disposition of the case. When the propriety of the use of the tape recording was questioned, the attorney withdrew from the case. Although the case was thereafter settled by substitute counsel without use of the tape recording, a complaint was filed against the attorney.

At the conclusion of the disciplinary proceedings, this Court found that under the facts of that particular case, the attorney was guilty of misconduct under DR 1-102(A)(4) for recording a conversation with an adversary or potential adversary without the knowledge and consent of all parties to the conversation. In so ruling, this Court relied, primarily, on ABA Comm. on Ethics and Professional Responsibility, Formal Op. 337 (1974). Formal Opinion 337 stated that with certain exceptions, it was indeed, an ethical violation for an attorney to record conversations of any persons without prior knowledge and consent of all parties to the conversation.

Sup. Ct. Rules, Rule 32, Code of Prof. Resp. DR 1-102(A)(4) prohibited a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. This provision is now contained in S.C. App. Ct. Rules, Rule 407, Rules of Prof. Conduct 8.4(d), effective September 1, 1990.

One year later, this Court was faced with a similar issue. In the case of In re Warner, 286 S.C. 459, 335 S.E.2d 90 (1985), the attorney, who, in the course of representing a client in a divorce action, engaged in a scheme to first entrap, then record a conference with a family court judge. In In re Warner, the attorney arranged for his client to carry a concealed recording device into a conference between the client and the family court judge. In rejecting the attorney's contention that statements made to him by his client concerning the family court judge left him with no alternative but to assist his client in obtaining "hard evidence" to substantiate the claims, this Court held that every member of the Bar knows, or is charged with knowledge, that complaints about members of the judiciary should be filed with the Judicial Standards Committee. The Court also unequivocally stated that it was "reprehensible and impermissible for an attorney to secretly record another attorney or, indeed, another person." In re Warner, 286 S.C. at 461, 335 S.E.2d at 91.

Although we thought that the issue of the propriety of secretly recording a conversation of any person had been adequately addressed by this Court in In re Anonymous Member of the South Carolina Bar and In re Warner, this Court has again been presented with a similar issue. The subject of this order involves the question of whether an attorney may utilize a recording device without prior knowledge and consent of all parties to the conversation, as an alternative means of taking notes. We recognize that it can be difficult for an attorney to partake in a conversation, yet at the same time, take notes that accurately reflect what was discussed and decided.

However, we reaffirm our prior rulings that an attorney shall not record a conversation or any portion of a conversation of any person whether by tape or other electronic device, without the prior knowledge and consent of all parties to the conversation. See In re Anonymous Member of the South Carolina Bar, supra; In re Warner, supra. Henceforth, this rule shall be applied irrespective of the purpose(s) for which such recordings were made, the intent of the parties to the conversation, whether anything of a confidential nature was discussed, and whether any party gained an unfair advantage from the recordings.

IN THE MATTER OF AN ANONYMOUS MEMBER