Missouri Supreme Court Advisory Committee
Formal Opinion 123

SECRET ELECTRONIC RECORDING OF A CONVERSATION WITH A NONCLIENT IS NOT A VIOLATION, ABSENT OTHER CIRCUMSTANCES

The issue to be addressed is whether an attorney violates the Rules of Professional Conduct by secretly recording a conversation.

Missouri informal advisory opinions¹ have stated that an attorney may not secretly record a conversation, even if the attorney is a party to the conversation. This approach originated long ago and was, historically, the approach taken by the ABA² and other jurisdictions. However, the ABA³ and many other jurisdictions have changed their approach to this issue. The Advisory Committee is of the opinion that the approach in Missouri should change as well. The Advisory Committee agrees with the reasoning of ABA Formal Opinion 01 dash–422.

An attorney may record a conversation, to which the attorney is a party, without notifying the other parties to the conversation, unless other factors are present including, but not limited to: (1) laws prohibiting the recording in the jurisdiction in which the recording would occur, (2) the attorney states or implies that the conversation is not being recorded, or (3) the conversation involves a current client of the attorney.

In some jurisdictions laws prohibit secret recording, even if the person recording is a party to the conversation. An attorney may not record a conversation, secretly or otherwise, if the act of recording would be illegal.

An attorney may not engage in dishonesty, deception, misleading statements, or misrepresentation about whether the attorney is recording the conversation. Such conduct would violate Rule 4 dash–8.4(c).

If the recording is of a conversation with a current client, the attorney must give some notice to the client that the attorney is, or may be, recording the conversation. Giving this notice is necessary under the attorney's duty to communicate with the client⁴ and is consistent with the attorney's duty of loyalty to the client. This notice could be given by disclosure at the time of the recording. The attorney could also have previously informed the client that the attorney tape records conversations from time to time and will not necessarily notify the client each time. However, if the client objects to lack of specific notice, the attorney must give specific notice to the client at the time of recording.

/s/ John C. Dods March 8, 2026
John C. Dods, Chair Date

Formal Opinions are issued by the Advisory Committee to members of the Bar as to interpretations of  Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(a).  While formal opinions are binding on members of the bar, these opinions are published as an educational service and do not constitute legal advice.

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