Is Secret Recording Unethical?

The Supreme Court of Virginia rejected an attempt by the Virginia State Bar to amend Rule 8.4 of the Rules of Professional Conduct that would allow lawyers under certain circumstances to conduct an investigation on behalf of a client using a recording device. In Virginia, undisclosed recording is not illegal under federal or state law if the recorder is a participant in the communication. The legal ethics committee of the Virginia State Bar, however, has opined that it is unethical for a lawyer to record or advise another to record a conversation without the other party's knowledge and consent. In other words, conduct that is legal is nonetheless unethical. The Court did not provide any comment in its order rejecting the bar's petition. Lawyers have to "walk the tightrope" when a client asks if he or she can tape record a spouse that is abusing them. It seems to me that lawyers should be able to advise clients regarding conduct that is legal. Unfortunately, doing so places the lawyer at risk of being disciplined. This is not a satisfactory state of affairs, in my view.