New NYC Bar opinion advises against recording nonclient conversations without ‘good reason’
The New York City Bar Association this week released a formal opinion on the ethical use of artificial intelligence for recording, transcribing and summarizing conversations between attorneys and people who are not their clients. (Image from Shutterstock)
The New York City Bar Association this week released a formal opinion on the ethical use of artificial intelligence for recording, transcribing and summarizing conversations between attorneys and people who are not their clients.
According to Formal Opinion 2026-2, which was published Monday, attorneys have to obtain the consent of any party—clients or nonclients—before recording their calls and consider whether it is “tactically well-advised” to record, transcribe or summarize them. The opinion also said, however, that unless they have “a good reason,” attorneys should avoid recording conversations because of ethical and tactical risks.
The formal opinion builds on previous opinions by the New York City Bar Association related to recording conversations between attorneys and clients and notes that similar principles apply to their conversations with co-counsel; prospective clients; opposing counsel; witnesses; and employees or agents of the attorney, such as investigators.
The question of whether to record conversations with prospective clients “presents a paradox,” according to the formal opinion.
“On the one hand, it may be helpful to have a record of the conversation, so that an attorney can make a better decision about whether to accept the case and, should the attorney decline, to document the bases for declining if the attorney desires to preserve a documentary record,” the opinion said. “On the other hand, having a record that is accessible within the firm that turned down the client creates the risk of information sharing and a potential conflict of interest both for the individual attorney whom the prospective client consulted and for that attorney’s firm.”
If recording conversations with co-counsel, attorneys have to ensure that any files or transcripts are not accessible beyond those involved in the joint representation to preserve privilege, the opinion said. While concerns about privilege do not often arise in attorneys’ conversations with opposing counsel, the opinion noted that they might arise with settlement discussions or mediation.
“If the settlement discussions or mediation are recorded, attorneys therefore need to take special care to protect the evidentiary privileges that attach to such discussions and the confidentiality of any client information that is disclosed in the course of such discussions,” the opinion said.
The formal opinion said recordings with witnesses or potential witnesses are potentially discoverable, which creates several risks, including jeopardizing confidentiality. It added that while there is value in recording conversations with employees or agents to track how they handled a witness or third party, this also could jeopardize confidentiality and privilege.
“As noted, in some of these contexts, the risk involved in recording the conversation will outweigh the value of doing so,” the opinion said.
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