November 01, 2007
Virginia Supreme Court Seeking Public Comment on Proposed Amendment to Rule 8.4 of the Rules
On October 27, 2006, Council of the Virginia State Bar approved a proposed amendment to Rule 8.4 of the Virginia Rules of Professional Conduct, in the form of new Comments 6 through 10. The Virginia State Bar, by its President and Executive Director, pursuant to Part Six: Section IV, Paragraph 10(g) of the Rules of the Supreme Court of Virginia, requested review and approval of the proposed amendment by the Supreme Court of Virginia. The Supreme Court of Virginia is now seeking further public comment on the proposed amendment. At the Court’s direction, the proposed new comments are being re-published in the Virginia Lawyers Weekly, and the Chief Justice has written to each of the other statewide bar associations seeking any input they may have.
Reasons for the Proposed Change
The proposed new Comments 6 through 10 provide guidance to lawyers regarding when a lawyer, or an agent under the lawyer’s direction or control, may ethically engage in lawful, undisclosed or non-consensual recording of communications in which the lawyer or agent is a participant.1 Under these proposed comments, the undisclosed recording of a communication or event by a lawyer or an agent under the lawyer’s supervision is permitted if the recording: a) is lawful; b) is consented to by one of the parties to the transaction; c) is in furtherance of an investigation on behalf of a client; d) is not effectuated by means of any misrepresentations; and e) the means by which the communication or event was recorded and the use of the recording do not violate the legal rights of another.
These comments represent a significant departure from the per se prohibition adopted by the Standing Committee on Legal Ethics in prior legal ethics opinions, wherein the committee concluded that a lawyer who engages in the undisclosed recording of his or her conversation with another violates the ethical prohibition against deceitful conduct under former DR 1-102 (A)(4) of the Code of Professional Responsibility and current Rule 8.4 (c) of the Rules of Professional Conduct.2 The Committee took the position (although often in dicta) that undisclosed tape recording was inherently deceitful conduct in violation of Rule 8.4 (c) and therefore generally prohibited, except in narrowly defined circumstances. See, e.g., Virginia Legal Ethics Ops. 1738 and 1765 (recognizing exceptions to the ban on undisclosed tape recording for law enforcement undercover activity, discrimination testing and intelligence operations).3 After careful deliberation, the Committee has cautiously retreated from the view that a lawyer’s use of undisclosed recording is per se “deceitful?? conduct. Indeed, as reflected in Virginia Legal Ethics Opinions 1738 and 1765,4 the Committee was compelled to acknowledge that there are circumstances under which a lawyer or an agent under the supervision or direction of the lawyer may secretly record communications in which he or she is a participant and that such conduct does not violate Rule 8.4’s prohibition against deceitful conduct reflecting adversely on the lawyer’s fitness to practice law.
Inspection and Comment
The proposed amendment may be inspected at the office of the Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday. Copies of the proposed amendment can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557, or can be found at the Virginia State Bar’s Web Page at www.vsb.org. Any individual, business or other entity may file or submit written comments in support of, or in opposition to, the proposed amendments by filing ten copies with the Clerk of the Supreme Court of Virginia and three copies with Thomas A. Edmonds, the Executive Director of the Virginia State Bar, not later than December 8, 2007.
1. The recording of a conversation to which one participating party consents is not illegal. See Cogdill v. Commonwealth, 219 Va. 272, 278 (1978).
2. Former DR 1-102 (A)(4) of the Code of Professional Responsibility stated: “[a] lawyer shall not. . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflects adversely on a lawyer's fitness to practice law.?? Effective January 1, 2000, the Supreme Court of Virginia adopted the Virginia Rules of Professional Conduct (“RPC??). RPC 8.4 (c) states: “t is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflects adversely on a lawyer's fitness to practice law.??
4. Virginia Legal Ethics Opinion 1765 was approved by the Supreme Court of Virginia and therefore is not merely advisory but rather has the force of a decision by the Court. Va. S. Ct. R., pt. 6, § IV, ¶ 10 (g)(iv).
Updated: Aug 06, 2008