Archive for the tpoic: ‘tape recording’

Is this a Sacred Cow?

Wednesday, October 3rd, 2007

The issue of sacred cows is important to any discussion of legal ethics. When we talk about sacred cows, more often than not, we are talking about a rule, idea or concept lacking in intellectual substance or foundation. Oftentimes rules, ideas or concepts are built up over time. Many times they are based on popular notions that fit society’s beliefs. Nevertheless, sometimes those beliefs or notions are wrong.

Frequently, when a sacred cow is held up to analytical scrutiny it will perish. In an ideal situation, sacred cows are ground into intellectual hamburger and quickly dismissed because they lack an intellectual foundation. Sacred cows sometime meet their demise because of a change in society. Nevertheless, some sacred cows survive quite a long time. Sometimes discerning whether an idea or rule is a sacred cow is difficult.

Legal ethics rules should not merely be someone’s interpretation of what a disciplinary rule should or ought to provide. Instead, each aspect of the disciplinary rules should be carefully scrutinized. The acid test is whether the rule makes sense in light of the totality of the scheme established by the disciplinary rules. A single ethical rule should not be considered in a vacuum. This is especially because the disciplinary rules set the floor level for what conduct is acceptable for lawyers and is consistent to create an overarching system of rules. Interpretations of the disciplinary rules should therefore be consistent with the comments and with other positive law. The problem is that quite often commentators, ethics committees and others can add gloss to the disciplinary rules that was never intended by the rules, and is inconsistent with the overall scheme of the rules.

Not long ago, one of the sacred cows of Texas legal ethics met its demise. For years, it was unethical for Texas lawyers to surreptitiously tape record telephone conversations with their clients and third parties. (“Be Careful What You Say: A Lawyer May Be Recording You!” Bruce A. Campbell. PLUS Journal, September 2007.) As is discussed below, for nearly thirty years the Professional Ethics Committee of the State Bar of Texas (the “Ethics Committee”) had asserted based upon their interpretation of the Rules that such tape recordings were unethical. Not long ago, the interpretation of the Ethics Committee changed. The question that still remains is should lawyers be allowed to record all other communications with clients and third parties without their knowledge. If a recording of a telephone call is permissible, does that mean that surreptitious recordings of in person meetings should also be permissible? We will have to wait for an answer to the questions of when recordings are permissible in situations other than telephone calls.

The problem with slaying ethical cows is that it adds more uncertainty to the practice of law. Nevertheless, ethical rules just like most things in life will be subject to change. Or as the head coach of the Dallas Mavericks used to say, “It ain’t over until the fat lady sings.” Hopefully we will continue to see the demise of sacred cows in legal ethics. And, hopefully we will not have too many unanswered questions in the meantime.