These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

After describing the Virginia Bar's long history of addressing lawyers' ability to advise clients to tape record conversations (including a discussion of Gunter v. Virginia State Bar, 238 Va. 617, 385 S.E. 2nd 597 (1989)), the Bar holds that lawyers would not violate the ethics rules by advising their clients about the clients' ability to tape record conversations in two scenarios: (1) a client seeking evidence of a father's sexual abuse of the client, which the father has admitted during previous telephone calls with the client (overruling the Bar's holding in Virginia LEO 1448 (1/6/92), which held that such a lawyer could not advise the client to tape record conversations with her father); (2) a corporate employee's effort to prove sexual harassment by a co worker, which could be captured by the employee's wearing of a recording device at work. In both of these situations, the Bar held that "[t]he proposed undisclosed recording is not only lawful, but could very well be the only means by which the client may obtain relevant evidence." 1/6/92) [Overruling Virginia LEO 1448 and effectively overruling Virginia LEO 1324; effectively expanding Virginia LEO 1738]

Copyright 2000, Thomas E. Spahn