Virginia Lawyers Weekly

The Supreme Court of Virginia has rejected an amendment to the Rules of Professional Conduct that would have allowed attorneys to use undisclosed recordings to investigate and develop a case.

The vote was 4-3, with Justices Cynthia D. Kinser, Donald W. Lemons and S. Bernard Goodwyn dissenting.

The Virginia State Bar’s Standing Committee on Legal Ethics had recommended the change to Rule 8.4 in part to clarify the Supreme Court’s holding in Gunter v. Virginia State Bar, 238 Va. 617 (1989), which upheld a 30-day suspension for a lawyer who authorized the recording of a conversation between third parties.

The Gunter decision did not address directly the use of undisclosed recordings when one of the parties consented to them, but many lawyers believed, and early Legal Ethics Opinions after Gunter suggested, that the court had established a per se ethical rule in such cases.

Such a rule would go far beyond Virginia law, which generally permits undisclosed recordings so long as one party is aware that the conversation is being recorded.

Under a proposed Comment (7) to Rule 8.4, surreptitious recording of a conversation would be ethical so long as one party to the conversation was aware of the recording, it was part of an investigation on behalf of a client, and it had not been obtained through misrepresentation or in violation of the rights of another.

Comment (6) would continue to make undisclosed recordings unethical if the taping was unlawful, as would be the case in a wiretap in which no party to the conversation was aware of the recording.

In proposing the clarification, the committee said it believed that the rule should be consistent with state law, especially when a close reading of Gunter shows that it does not conflict with the law.

The committee proposed the change in November 2006, and the Supreme Court asked that it be republished for comment. After the procedure was completed, the VSB Council endorsed the change and sent it back to the court in March 2008.

The Supreme Court’s order rejecting the change contains no analysis.

Two UPL opinions

The court has also approved Unauthorized Practice of Law Opinions 213 and 214, which have been before the court since July 11.

UPL Opinion 213 says an attorney on associate status may represent his own interest in negotiating and drafting an easement but not the interest of others with an interest in the land. He may provide advice, but not drafting services, so long as he is not compensated for the advice.

UPL 214 says a certified public accountant would be engaging in the unauthorized practice of law if he were to represent a client for compensation in an arbitration proceeding that involved taking evidence and drafting pleadings.

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