Not legal advice. This site is an editorial reference. Laws change — always confirm with a qualified attorney in the relevant jurisdiction before recording, and check each page’s last reviewed date.

Recording Phone Calls as a Lawyer

The ethics rule in many states is stricter than the criminal statute. Recording opposing counsel without disclosure, even in a one-party-consent jurisdiction, has cost lawyers their licenses. Treat any recording involving another lawyer as requiring disclosure regardless of where you are.

The legal overlay specific to this role

  • State bar ethics opinions. Historically, ABA Formal Opinion 337 (1974) stated that a lawyer’s surreptitious recording of any conversation was generally improper. The ABA softened that position in Formal Opinion 01-422 (2001), but many state bars still treat surreptitious recording of fellow lawyers, witnesses, or judges as a violation of Rules 4.4 and 8.4 of the Model Rules of Professional Conduct. State bar ethics committees in New York, Pennsylvania, Florida, and others have disciplined lawyers for unannounced recording.
  • Attorney-client privilege. Recording your own conversation with a client requires consent and waives nothing on the client’s side. Recording a conversation that includes someone else’s privileged material risks creating an unprivileged copy.
  • Evidence rules. Federal Rule of Evidence 901 and state analogues require authentication of recordings; chain-of-custody matters.
  • State consent rules apply to lawyers as to anyone.

A practical workflow

  1. Default to disclosure with any lawyer, witness, or court personnel. Say at the start: “I’m recording this call.”
  2. For client recordings, get written consent in the engagement letter and verbally confirm at each session.
  3. For witness recordings, disclose, document the consent, and treat the recording as evidence.
  4. Store recordings on encrypted, access-controlled storage; treat them as part of the client file.
  5. Set a retention policy aligned with your state’s file-retention rule (usually tied to limitation periods plus a buffer).

Consent script tailored to this role

I’m going to record this call for my notes. Is that OK with you?

Pause for affirmative response. Note the time and the affirmative consent in the file.

Tools and platforms suited to this role

  • Practice-management platforms with recording features (Clio, MyCase, PracticePanther).
  • Standalone hardware recorders for in-person witness statements.
  • Zoom / Teams for video depositions where a court reporter is present.

Common mistakes

  • Surreptitious recording of opposing counsel in a one-party state. The criminal statute may permit it; your state bar likely does not.
  • Recording a client meeting that includes a non-client (e.g., a spouse) and inadvertently creating a non-privileged record.
  • Treating the recording as discoverable when it might be privileged work product — or vice versa.
  • Storing recordings on a personal phone or unsecured email.

Where to get help

  • Your state bar’s ethics hotline.
  • The state-bar formal ethics opinions on recording (PA Formal Opinion 99-2; NY Bar Op. 280; Florida Bar Op. 86-2; etc.).
  • Your malpractice carrier’s risk-management resources.

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