Canadians’ interest in legal ethics continues to remain very high. What, then, are the ethics of a lawyer’s secret recording of a telephone call with a client, including the employees of a client?
Rule 7.2-3 of the Ontario Rules of Professional Conduct provides:
7.2-3 A lawyer shall not use any device to record a conversation between the lawyer and a client or another legal practitioner, even if lawful, without first informing the other person of the intention to do so.
Chapter XVI, s. 5 of the Canadian Bar Association’s Code of Professional Conduct goes even further by extending the prohibition to conversations with “anyone else”:
The lawyer should not use a tape-recorder or other device to record a conversation, whether with a client, another lawyer or anyone else, even if lawful, without first informing the other person of the intention to do so.
Is the breach of the lawyer’s ethical rule not to record a conversation with a client ever justified? Can the rule be balanced with a personal or public interest? No to both. The Supreme Court of Canada has made it clear that a lawyer, even after the relationship with the client has been severed, owes a continuing duty of loyalty not to use confidential information against the former client: Canadian National Railway Co. v. McKercher LLP. Indeed, our bar rules also forbid disclosure of confidential client information, and the only exceptions are (a) disclosure specifically compelled by law or court order and (b) disclosure necessary to prevent imminent risk of death or serious injury.
These rules of legal ethics may seem unfair. The public may clamour for the information previously obtained by the lawyer and for the proof of such information. But the duty to protect our clients’ secrets is part of the calling. No matter how much we may feel compelled to disclose it or to provide proof of a conversation to the sphere of public discourse, it is not our information to tell. Secretly recording a conversation cannot be intended for a purpose consistent with the duty of loyalty. Whether we like it or not, we are keepers of secrets and it is a breach of trust to make secret recordings of phone calls with a client.