Ethics
New NYC Bar opinion advises in opposition to recording nonclient conversations with out ‘good motive’
The New York Metropolis Bar Affiliation this week launched a proper opinion on the moral use of synthetic intelligence for recording, transcribing and summarizing conversations between attorneys and people who find themselves not their purchasers. (Picture from Shutterstock)
The New York Metropolis Bar Affiliation this week launched a proper opinion on the moral use of synthetic intelligence for recording, transcribing and summarizing conversations between attorneys and people who find themselves not their purchasers.
In line with Formal Opinion 2026-2, which was published Monday, attorneys need to receive the consent of any occasion—purchasers or nonclients—earlier than recording their calls and take into account whether or not it’s “tactically well-advised” to file, transcribe or summarize them. The opinion additionally mentioned, nevertheless, that until they’ve “an excellent motive,” attorneys ought to keep away from recording conversations due to moral and tactical dangers.
The formal opinion builds on earlier opinions by the New York Metropolis Bar Affiliation associated to recording conversations between attorneys and purchasers and notes that related ideas apply to their conversations with co-counsel; potential purchasers; opposing counsel; witnesses; and workers or brokers of the legal professional, akin to investigators.
The query of whether or not to file conversations with potential purchasers “presents a paradox,” in accordance with the formal opinion.
“On the one hand, it could be useful to have a file of the dialog, in order that an legal professional could make a greater choice about whether or not to just accept the case and, ought to the legal professional decline, to doc the bases for declining if the legal professional wishes to protect a documentary file,” the opinion mentioned. “However, having a file that’s accessible inside the agency that turned down the consumer creates the chance of knowledge sharing and a possible battle of curiosity each for the person legal professional whom the possible consumer consulted and for that legal professional’s agency.”
If recording conversations with co-counsel, attorneys have to make sure that any recordsdata or transcripts aren’t accessible past these concerned within the joint illustration to protect privilege, the opinion mentioned. Whereas considerations about privilege don’t usually come up in attorneys’ conversations with opposing counsel, the opinion famous that they could come up with settlement discussions or mediation.
“If the settlement discussions or mediation are recorded, attorneys due to this fact have to take particular care to guard the evidentiary privileges that connect to such discussions and the confidentiality of any consumer data that’s disclosed in the midst of such discussions,” the opinion mentioned.
The formal opinion mentioned recordings with witnesses or potential witnesses are doubtlessly discoverable, which creates a number of dangers, together with jeopardizing confidentiality. It added that whereas there’s worth in recording conversations with workers or brokers to trace how they dealt with a witness or third occasion, this additionally might jeopardize confidentiality and privilege.
“As famous, in a few of these contexts, the chance concerned in recording the dialog will outweigh the worth of doing so,” the opinion mentioned.
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