Question

I type up voicemail messages left for me on client matters. Are there any ethical problems with this practice?

Answer

I have not seen any ethics opinions that address this topic, but I think that it is acceptable to type up a voicemail message and then use that typed document to refresh your memory as to the content of the voicemail and the steps you need to take in the representation of the client. It would be the same as storing the voicemail message with the client file and having it available if there is a dispute over the statements made by the caller during the representation.

It is not unusual to have a voicemail message transcribed so that it can be referred to when making a response to the caller. There might be concerns about the verbatim message being introduced in a trial setting, but that is more an evidentiary issue than it is an ethics issue. Nothing suggests that transcription of a voice message violates the Rules of Professional Conduct, and it is reasonable for lawyers to assume that a person leaving a voicemail message would realize that the exact words used in the message might become part of an evidentiary hearing about the representation or the communication.

Other situations might be looked upon differently. It is generally considered inappropriate and unethical to surreptitiously tape-record statements made by another party during a representation. Wisconsin is a one-person consent state so it would be legal to have a conversation tape-recorded because the party doing the tape-recording would be giving the consent. However, the surreptitious recording of a conversation has been deemed unethical and could form the basis for a grievance against the attorney. Many years ago, the Committee on Professional Ethics issued an opinion to that effect. The opinion might be subject to new interpretations because of advances in technology, but in my view, surreptitious recording is a deceptive practice at a minimum and should not occur. This is true even if a lawyer is considering secretly tape-recording a conversation with a client.

Sometimes a lawyer will tape-record the lawyer’s side of a conversation to document what was said during a conversation with an opposing party. This is a different situation because the attorney is only recording the attorney’s side of the conversation and is not recording or preserving the other party’s statements. This becomes a method to preserve a record of your conversation with the opposing party and might be useful depending on the circumstances surrounding the conversation. The tape-recording of the attorney’s side of a conversation without recording the other party simply becomes a method to document what the attorney said during the conversation and preserving that information in case it may be necessary to resolve a future dispute.

Technology has done many great things to assist lawyers in the practice. Lawyers must be careful, however, about how they use technology to further the interests of their clients.

» Cite this article: 95 Wis. Law. 47 (October 2022).