1635
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| A company officer (who is also a lawyer) tape records a telephone conversation the officer has with a terminated corporate employee. Because the Code provision prohibiting lawyers from engaging in misrepresentation is "not specifically applicable to activities undertaken in an attorney-client relationship," the lawyer's tape recording was improper even if the officer were acting only as a corporate officer and not as the corporate lawyer.After citing the familiar list of factors for determining whether a lawyer's misconduct must be reported, the Bar concludes that the tape recording without consent "may raise a substantial question" as to the lawyer's honesty, trustworthiness or fitness to practice law in other respects. The Bar cautions that the reporting lawyer must be "vigilant" in avoiding such reporting "solely to obtain an advantage in a civil matter." [In LEO 1738, the Bar indicated that lawyers may secretly tape record telephone conversations in which they participate, but only in situations involving criminal or housing discrimination investigations or if the lawyers are protecting themselves from possible criminal action.] [If information about the ethics violation is a client confidence, a lawyer may report the other lawyer's misconduct only if the client consents under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the client under that Rule.] |