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July 26, 2018

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Bernie Burk

anon:

Sorry, but your second comment is still not correct. ABA Formal Ethics Opinion No. 01-422 and a number of state and local bar ethics opinions essentially agree that where there is a proper purpose for the taping, and the taping is proper under applicable law (for example New York law and the law of multiple other states authorizing one-party consent), there is no ethical violation, and no disciplinary consequence, for secret taping. Secret taping of nonclients will often be easy to find permissible under this standard. Secret taping of clients will often be much more difficult to justify. But the bottom line here is that in many jurisdictions many kinds of secret taping will have no legal consequences of any kind, and thus it is not accurate to say that residents in those states have a reasonable expectation they will not be taped without notice.

I hasten to add that, even when it is legal, secret taping is generally a bad idea because it interferes with otherwise available work product protection and can make the lawyer a witness to disputed facts.

--Bernie

Scott Pruitt Edndowed Chair in Enviconmental Justice

Why is the ABA even part of this serious discussion? The ABA is nothing more than a trade group handing out stress balls and mints at their show. Nothing more. Show me something from a State regulator.

anon

Bernie

You insist on misstating my view, and you are focusing on the wrong end of the elephant to boot! Since you insist on framing a discussion by starting with "you are wrong" let me respond in kind. Despite an incredibly and unnecessarily long winded analysis, you seem to be completely missing the point of the matter.

My comment was: "We might not fault an attorney who secretly records his client if he keeps the recording a secret from EVERYONE, including his client. When that attorney leaks the recording to the world, to the detriment of and for the purpose of damaging his client, then the issue is, perhaps, more than just violation of vague rules of ethics."

As for the issue you appear to be limiting yourself to (which is not the issue, btw), secret taping that remains secret, as stated above, I would not find any violation in the taping per se. Absent criminal liability for the taping per se, it is the use of the recordings that is at issue.

One could expand that inquiry to involuntary production, pursuant to law, or inadvertent disclosure, but you haven't even scratched the surface in those respects.

anon

BTW, you state the issue, with respect to tort liability: "proximately caused any compensable monetary harm."

Have to give that issue spot a C, Bernie. That isn't the issue with respect to "tort liability."

Bernie Burk

anon: Troll on, my friend. The record is adequately clear.

--Bernie

anon

Yes, it is, my friend. "Troll" is a completely inappropriate, emotional retort, and not in any way accurate, responsive or thoughtful.

I can recall similar outbursts. Students must love it!

Scott Pruitt Edndowed Chair in Enviconmental Justice

Trolling would be calling somebody a die hard Trump supporter.

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