Michael Cohen’s secret recording of his client, a former and future president, thrust into the headlines the law of lawyer-client recordings¹. Ever more potent technology makes it ever more feasible and tempting for lawyers and clients to record their interactions surreptitiously. Attorneys and clients might wish to recall exchanges precisely. Lawyers may want artificial intelligence (“AI”) to summarize interviews, list deliverables and do other menial work. Lawyers distrusting adverse counsel might lurch to record their discussions.

This month’s Ethics Corner explores these murky ethical and professional matters, with best practices for what to do —and not do—if the “record” button beckons.

Privacy and No-Recording Retainers?

As we begin, let us be clear that our subject concerns recordings by devices generally available to the public such as phones and commercial computers. The federal Wiretap Act prohibits digital tie clips, hairpieces, martini olives and other James Bond recording devices².

New York has no common-law right of privacy³, and New York privacy statutes do not ban most secret audio recordings⁴. New York follows the minority rule of one-party consent: it is not a crime for one party to a conversation to record it without other participants’ consent⁵.

It follows that a client secretly may record discussions with their lawyer whether live in the lawyer’s office, on a phone or video call, or even in court⁶. Stories abound of attorneys discovering —usually after the attorney-client relationships sours —that their clients did just that.

Some lawyers have begun adding recording bans to engagement letters. The New York State Bar Association opines that a no-recording clause is permissible, so long as the letter does not seek advance client consent to withdraw for a no-recording violation and it informs the client that withdrawal remains subject to court approval even after a violation⁷. 

No-recording clauses are imperfect remedies. NYSBA holds that a single no-recording violation is unlikely to render a representation “unreasonably difficult” under Rule 1.16(c)(7) of the New York Rules of Professional Conduct (“NYRPC”) or constitute “other good cause for withdrawal” under Rule 1.16(c)(12) of NYRPC⁸. Instead, a withdrawal motion pursuant to Section 321of the New York Civil Practice Law and Rules (“CPLR”) will remain necessary, vesting relief in judicial discretion based on the facts.

Lawyers Recording Clients?

Can two play at the recording game? May a New York lawyer secretly record the client? 

Strictly ethical or not, professionalism counsels reflection, because a general practice of recording can inhibit the candor at the heart of the attorney-client relationship⁹. Secret recording, if discovered, also can impel both the client and the public to view the lawyer as “disloyal” if not also “deceptive.”¹⁰

For sure, a lawyer must not record in a courthouse that bans recording. Violations risk a NYRPC Rule 8.4(d) charge for conduct prejudicial to the administration of justice and, for recordings before a tribunal, a NYRPC Rule 3.3(f)(3) charge for violating an “established rule of procedure.”¹¹

Opinions otherwise have been fluid on the ethics of lawyers secretly recording clients. The American Bar Association long ago deemed the practice unethical absent law-enforcement mandate¹², but reversed course except where a jurisdiction outright bans recording or a lawyer falsely represents that a conversation is not being recorded¹³. Even so, some scholars and states hew to the ABA’s original view¹⁴, as does NYSBA¹⁵. In 1993, the New York City Bar disagreed, reasoning that no client speaking with a lawyer in New York can have a reasonable expectation against recording, because New York requires only one-party consent¹⁶.

In 2003, however, the City Bar reversed course in the other direction. While undisclosed secret recording smacks of trickery and is improper as a routine practice…, there are circumstances in which undisclosed [recording] should be permissible on the ground that it advances a generally accepted societal good…. A lawyer should not be subject to professional discipline if he or she has a reasonable basis for believing such circumstances exist¹⁷.

What might such “circumstances” be? To the City Bar, a lawyer might serve a “societal good” by recording a client who threatens the attorney, or whom the lawyer has particular reason to believe might commit perjury¹⁸. The extreme circumstances of Rule 1.6(b) of the NYRPC, which allows disclosure of client confidences to “prevent reasonably certain death or substantial bodily harm,” “prevent the client from committing a crime,” or “defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct,” might pass muster as well. 

And what of AI using client confidences to generate client interview transcripts, perform conflict checks, create to-do lists or auto-populate forms? The ABA recognizes that AI can aid lawyer efficiency, with corresponding benefits to the client¹⁹, but not all AI tools ably protect confidentiality. As Rule 1.6(c) of the NYRPC obliges reasonable attorney efforts “to prevent the inadvertent or unauthorized disclosure, or use of, or unauthorized access to” confidences²⁰, AI platforms that use recordings or transcriptions to improve AI accuracy, or that do not sufficiently protect against unauthorized access, might risk a violation of Rule 1.6(c) of the NYRPC.

Just Between Us Lawyers?

May a lawyer in New York record adverse counsel —say, in negotiations? Leaving aside courthouse prohibitions, the New York County Lawyers Association said yes in 1993 for lack of attorney-client concerns, though NYCLA expressed professional concern that a general practice of recording (or fear of one) could chill communications.²¹ In a pattern now familiar to readers, the City Bar disagreed in 1995, deeming the practice inherently deceptive and thus unethical.²² 

These opinions are over 30 years old, and the ABA and NYSBA positions they relied on have shifted and in some instances reversed. The result is murky guidance and the frustrating prospect that what attorney professionalism might discourage, ethics law could well allow.

Emerging Best Practices?

While these issues continue to evolve in light of emerging technologies and shifting public expectations, some best practices about recording are slowly coming into focus:

• Never record in a courthouse without prior judicial consent. Just don’t

 

• Obtain consent if feasible Engagement letters can obtain informed consent by clear disclosure, including as to any AI use. Lawyers using no-recording clauses should not seek advance consent to withdraw or suggest automatic withdrawal without judicial consent. 

 

• Check AI terms of service. Lawyers using AI to record, transcribe or follow up on a confidential communication should confirm that AI terms of service reasonably suffice to protect confidentiality. Commercial AI products specifically for lawyers are more likely to pass muster.

 

• Check AI accuracy. Lawyers using AI must confirm the accuracy of any resulting AI product. Rule 1.1(a) of the NYRPC requires lawyers to maintain competence, which includes knowing current AI limitations. AI sometimes gets it wrong, so do not let AI replace human reading and thought.

 

• Think carefully. As long as ethics guidance remains murky, the wise lawyer will consider, before hitting the record button, what might happen if the fact of a secret recording becomes known. Truly exigent circumstances aside, the impacts on trust and reputation might far outlast the momentary impulse to record without consent.

 

Endnotes

1. See M. Apuzzo et al., “Michael Cohen Secretly Taped Trump Discussing Payment to Playboy Model,” N.Y. Times, Jul. 20, 2018; C. Hamilton, “Trump Recording Raises New Legal Issues in Cohen Investigation,” N.Y.L.J., Jul. 20, 2018; People v. Trump, 86 Misc.3d 810 (Sup. Ct. N.Y. Co. 2024).
2. See 18 U.S.C. §§ 2510, et seq.
3. See Howell v. N.Y. Post Co., Inc., 81 N.Y.2d 115, 123 (1993).
4. See generally New York Civil Rights Law art. 5. As an exception, employers may intercept and record employee conversations at work but must give prior written notice. See N.Y. Civil Rights Law § 52-c(2).
5. See Penal Law §§ 250.00(2), (6); 250.05 (“mechanical overhearing of a conversation”); see generally A. Bernabe, “Is it Ethical for Attorneys to Record Telephone Conversations?,” U. Ill. L. Rev. (Sep. 19, 2019), available at https://tinyurl.com/4p8p8puf (accessed Nov. 28, 2025).
6. New York criminalizes “televising, broadcasting, or taking of motion pictures” in proceedings “in which the testimony of witnesses by subpoena or other compulsory process is or may be taken.” Civil Rights Law § 52; see Courtroom Tel. Network LLC v. State, 5 N.Y.3d 222 (2005). This ban, however, does not govern still photography, see e.g. People v. Kopp, 195 Misc.3d 475 (Erie Co. Ct. 2023), or by extension to a client’s mere audio recording. Particular courts that ban recording tend to wield more enforcement power over lawyers than their clients.
7. See N.Y. State Op. 1270 (2024).
8. See Id., at ¶¶ 6, 14-15.
9. See B. Dempster, “Surreptitious Recording by Attorneys: Ethical Issues and Possible Remedies,” 44 Seton Hall Legis. J. 115, 138 (2020).
10. P. Joy, “Special Counsel Investigations & Legal Ethics,” 57 Duquesne L. Rev. 252, 268 (2019).
11. See Matter of Schorr, 166 A.D.3d 115 (N.Y. App. Div., 1st Dep’t 2018).
12. See A.B.A. Formal Op. 337 (1974).
13. See A.B.A. Formal Op. 01-422 (2001). The ABA’s Standing Committee on Ethics and Professional Responsibility was divided on the issue then and has not issued superseding guidance.
14. See e.g., J. Bries, “Legal Ethics of Secret Client Recordings,” 24 Georgetown J. Legal Ethics 55 (2020); S.C. Formal Op. 08-13 (2013); Colo. Formal Op. 112 (2003).
15. See N.Y. State Op. 328 (1974).
16. See N.Y. City Op. 696 (1993). 
17. N.Y. City Op. 2003-02 (2003).
18. See Id.
19. See ABA Formal Op. 506 (2023).
20. Rule 1.6(c) of New York Rules of Professional Conduct.
21. See N.Y. County Op. 696 (1993); N.Y. County Op. 552 (1967).
22. See N.Y. City Formal Op. 1995-10 (1995).

 

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David Evan Markus, Esq., David Evan Markus chairs the WCBA Committee on Ethics & Professionalism and the WCBA Special Committee on the Future of the Bar, and is elected to the New York State Bar Association House of Delegates and WCBA Executive Committee.  He serves as Referee in Supreme Court, Ninth Judicial District, and previously served as Statewide Special Counsel for Programs and Policy for Chief Judges Judith Kaye and Jonathan Lippman.