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LEO on undisclosed recordings adopted

The Standing Committee on Legal Ethics of the Virginia State Bar finally has a formal position on the troublesome issue of using undisclosed recordings to investigate and develop a case.

The committee adopted Legal Ethics Opinion 1802, which shifts the focus from a situation in which a lawyer directs clients to make such recordings to one in which the attorney advises that such recordings are legal in Virginia.

LEOs are advisory, but the committee issued this one after it failed to win approval by the Supreme Court of Virginia of a more binding approach by a proposed comment to Rule 8.4 of the Rules of Professional.

The Supreme Court had the matter before it for almost 2-1/2 years and at one point asked the committee to republish it for comment before rejecting it on a 4-3 vote in March 2009.

The committee sought to clarify the holding in Gunter v. Virginia State Bar, 238 Va. 617 (1989).

The 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.

LEO 1802 overrules LEO 1448, which said it would be unethical for a lawyer to advise the victim of sexual abuse by her father when she was a child to record a conversation between the victim and her father about the abuse.

That is now permissible, the committee said, as is advice by in-house counsel that an employee who contends she is being subjected to sexual harassment that she can use an undisclosed device to record a coworker’s comments.

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