LEO #1635 DUTY TO REPORT MISCONDUCT; FRAUD; ATTORNEY'S TAPE
          RECORDING TELEPHONE CONVERSATION WHEN NOT ACTING IN
          ATTORNEY CAPACITY; THREATENING DISCIPLINARY ACTION
          AGAINST OPPOSING ATTORNEY IN CIVIL MATTER

You have presented a hypothetical situation in which Attorney A
represents an individual, Mr. Doe, who was involved in a dispute
over the termination of his employment with a corporation.  Prior
to Attorney A's involvement in the case, Attorney B, the son of the
owners of the corporation and an officer of the corporation,
telephoned Mr. Doe to inform him of the termination of his
employment and the reasons therefore.  While Attorney B did not
indicate in the telephone conversation that he was acting as
attorney for the corporation, Mr. Doe was aware that Attorney B was
an attorney.  You indicate that, without notifying Mr. Doe and
without obtaining his consent, Attorney B tape recorded the
telephone conversation.  In a subsequent telephone conversation
with Attorney A, Attorney B informed Attorney A that he had tape
recorded the earlier conversation with Mr. Doe.  In response to Mr.
Doe's Request for Production of Documents filed in the lawsuit
against the corporation for wrongful discharge, the corporation
produced the transcript of the taped conversation.

Under the facts you have presented, you have asked the committee to
opine as to several issues related to the tape recording of the
telephone conversations.

The appropriate and controlling disciplinary rules relative to your
inquiry are DR 1-102(A)(4) which prohibits a lawyer from engaging
in conduct involving dishonesty, fraud, deceit, or
misrepresentation; DR l-l03(A) which mandates that a lawyer having
information indicating that another lawyer has committed misconduct
that raises a substantial question as to that lawyer's honesty,
trustworthiness, or fitness to practice law in other respects,
shall report such information to the appropriate professional
authority; and DR 7-l04 which prohibits a lawyer from presenting,
participating in present, or threatening to present criminal or
disciplinary charges solely to obtain an advantage in a civil
matter. 

The committee has previously opined that even if non-consensual
tape recording of telephone conversations is not prohibited by
Virginia or federal law, a lawyer's engaging in such
conduct...would be improper and violative of DR l-l02(A)(4).  LEO
#l324 citing Gunter v. Virginia State Bar, 238 Va. 6l7
(l989)["conduct may be unethical, measured by the minimum
requirements of the Code of Professional Responsibility, even if it
is not unlawful....  The surreptitious recordation of conversations
authorized by Mr. Gunter...was an 'underhand practice' designed to
'ensnare' an opponent".]

Therefore, in the facts you present, the committee believes that
LEO #l324 is dispositive of the question as to whether Attorney B's
conduct in engaging in the non-consensual tape recording was
improper and violative of DR l-l02(A)(4).  Since the disciplinary
rule in issue is not specifically applicable to activities
undertaken in an attorney-client relationship, the committee is of
the opinion that the outcome would not be different if Attorney B
were acting only as an officer of the corporation or as agent for
the owners of the corporation and not as the corporation's
attorney.

As to whether Attorney B's misconduct raises a substantial question
as to his honesty, trustworthiness, or fitness to practice law in
other respects, thereby imposing a duty on Attorney A to report the
misconduct pursuant to DR l-l03(A), the committee is of the view
that Attorney A must make such a determination after appropriate
consideration of the facts and analysis of the impact of the
misconduct on the delineated areas.  Relevant factors to be
considered include, but are not limited to: the recency of the
conduct, the seriousness of the conduct, the likelihood that the
behavior will be repeated, the likelihood that it will affect the
attorney's competence, and any mitigating or aggravating
circumstances.  See LEOs #l308, #1522, #1528; In re Himmel l25
Ill.2d 53l, 533 N.E.2d 790 (l988).  The committee is of the opinion
that, given that Attorney B knew that Mr. Doe's interests were
adverse to those of the corporation, Attorney B's having
surreptitiously tape recorded a telephone conversation without Mr.
Doe's consent may raise a substantial question as to Attorney B's
honesty, trustworthiness, or fitness to practice law in other
respects.

Finally, as to any conflict between Attorney A's reporting of
Attorney B's misconduct pursuant to DR l-l03(A) and the
prohibitions of DR 7-l04 against presenting or threatening to
present disciplinary charges solely to obtain an advantage in a
civil matter, the committee directs your attention to LEOs #1338
and #1545 which the committee believes are applicable to the
circumstances you present.  In those prior opinions, the committee
concluded that, once an attorney concludes that both prongs of DR
l-l03(A) have been met, i.e. that misconduct has occurred which
raises a substantial question as to the lawyer's honesty,
trustworthiness, or fitness to practice law, "the attorney is
obligated to report such misconduct without any unnecessary delay". 
LEO #l545.  However, the committee reiterates its caution that, in
reporting such misconduct, the lawyer must be "vigilant in
observing the DR 7-l04 prohibition against presenting or
threatening to present disciplinary charges solely to obtain an
advantage in a civil matter".  Id. [emphasis added]

[DRs 1-102(A)(4), 1-103(A), 7-104; LEOs 1308, 1324, 1338, 1522,
1528, 1545; In re Himmel, 125 Ill.2d 531, 533 N.E. 2d 790 (1988);
Gunter v. Virginia State Bar, 238 Va. 617 (1989)]

Committee Opinion
February 7, 1995