Yes, a Louisiana lawyer may record a phone call with a potential witness if at least one of the parties to call has given prior consent to the recording.
First, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility has issued a formal opinion providing guidance as to the propriety of “Electronic Recordings by Lawyers Without the Knowledge of All Participants.” See ABA Formal Op. No. 01-422 (Jun. 24, 2001). In that opinion, the committee concluded as follows: “Where nonconsensual recording of conversations is permitted by the law of the jurisdiction where the recording occurs, a lawyer does not violate the Model Rules merely by recording a conversation without the consent of the other parties to the conversation.” Id. There are no material differences between the potentially applicable ABA Model Rules and Louisiana Rules in this regard. Therefore, the conclusion is the same under the Louisiana Rules of Professional Conduct.
Second, the Louisiana Revised Statutes expressly provide that it is “not unlawful” for a person to record a telephone call when “such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception.” See La. Rev. Stat. sec. 15:1303(C)(4). This statute applies to a lawyer recording a phone call with a potential witness who is not aware that the call is being recorded.
Therefore, a Louisiana lawyer does not violate the law or Louisiana Rule 8.4(b) by recording the conversation.
