Legal Ethics Opinion No. 1448

Misconduct--Representing a Client Within the Bounds of the Law:
Advising Client/Potential Civil Plaintiff to Record Oral
Conversation With Unrepresented Potential Civil Defendant

You have presented a hypothetical situation in which Attorney
represents A, who was sexually abused by her father, B, for an
extended period during her childhood.  B's sexual abuse of A, if
proven, would constitute a criminal felony act. 
 
You indicate that A repressed the memories of the abuse and did
not recall the extent and nature of the abuse until she received
therapy as an adult.  Furthermore, as a result of the abuse, A
suffers from several significant psychiatric disorders and has
required extensive therapy, including several periods of
hospitalization.

Attorney represents A as to a possible civil suit against B for
damages related to his alleged sexual abuse of A.  You advise
that, for several reasons, there is little corroborating
evidence.  Finally, you indicate that Attorney has suggested that
A arrange a meeting with B, who is not currently represented by
counsel, and surreptitiously record their conversation, since B
has continued to have contact with A, and in some conversations,
has freely admitted his sexual abuse of A.  

You have asked the committee to opine whether, under the facts of
the inquiry, it would be violative of the Code of Professional
Responsibility for an attorney to advise a client to record a
conversation between the client and another party, without the
consent or prior knowledge of that party, for the purpose of
obtaining an admission of the party's sexual abuse of the client,
when the party is not represented by counsel.  

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 1-102(A)(4), which states that a lawyer shall
not engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation which reflects adversely on a lawyer's fitness
to practice law; DR 7-102(A)(8), which mandates that a lawyer
shall not knowingly engage in other illegal conduct or conduct
contrary to a disciplinary rule; DR 7-l03(B), which mandates that
a lawyer, in dealing on behalf of a client with a person who is
not represented by counsel, shall not state or imply that the
lawyer is disinterested; and DR l-l02(A)(2) which precludes a
lawyer from circumventing a disciplinary rule through the actions
of another. 

Whether or not the surreptitious recordation of conversations by
a lawyer, or by his authorization, to which the lawyer's client
is a party is legal in Virginia is, of course, a question of law
and, as such, is beyond the purview of the committee.  The
committee has previously opined, however, that even if
non-consensual tape recordings are not prohibited by Virginia or
federal law, a lawyer's engaging in such conduct, or assisting a
client in such conduct may be violative of DR 1-102(A)(4), since
a lawyer is prohibited from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation which reflects
adversely on the lawyer's fitness to practice law.  See LEOs
#1217 and #1324; Gunter v. Virginia State Bar, 238 Va. 6l7
(l989).  Under the facts you present, the committee opines that
advising one's client to initiate a conversation under possibly
false pretenses and to secretly record such conversation is
improper deceptive conduct which may reflect on the lawyer's
fitness to practice law, in violation of DR 1-102(A)(4).  The
committee further opines that since it would be unethical under
DR 1-102(A)(4) for the attorney to so advise the client, such
instructions would also be in violation of DR 7-102(A)(8).

Finally, it appears to the committee that the attorney is
attempting to do indirectly, through the client, what the
attorney could not ethically accomplish directly and personally
under the proscription of DR 7-l03(B), i.e., contact the
potential defendant directly under the appearance of
disinterestedness and surreptitiously record the conversation in
order to manufacture evidence for her client.  See LEO #233. 
Therefore, it is the view of the committee that it would be
improper and violative of DR l-l02(A)(2) for the attorney to
advise her client to accomplish the same objective since the
attorney is attempting to circumvent the Disciplinary Rules. 
See, e.g., LEOs #848 and 1170.

Committee Opinion
January 6, 1992