"Advising Clients on the Use of Lawful Undisclosed Recording" was the topic of the current edition of the Virginia Lawyer Register Proposed Legal Ethics Opinion (#1802). This proposed legal ethics opinion (LEO) addresses the ethical implications of a lawyer’s advising clients regarding the use of undisclosed recording.
After looking at several examples and prior precedent, the Virginia State Bar Legal Ethics Committee concluded that in both of the examples provided, the committee is faced with situations in which the client has asked the lawyer for his or her opinion on how to address the client’s legal problem. Further, the proposed undisclosed recording in both examples is not only lawful, but it could very well be the only means by which the client can obtain relevant information. The committee believes that the circumstances presented are easily distinguishable from and stand in stark contrast to the illegal wiretapping case presented in Gunter v. Virginia State Bar, 238 Va. 617. Click here to read the Proposal
Insurance companies routinely tape record disabled car and truck crash victims and get signed statements while clients are on strong medications and still recovering from their injuries. Then, when counsel request these statements, the insurance companies resist, stating that they are "protected," were taken "in anticipation of litigation," and therefore privileged. At ABRAMS LANDAU, Ltd. we believe that the insurance companies should have to turn over all statements and that the insureds and victims be allowed to use the same technology.