ANDERSON v. HALE No. 00 C 2021.
159 F.Supp.2d 1116 (2001)
Reverend Stephen Tracy ANDERSON, Plaintiff, v. Matthew F. HALE, the World Church of the Creator, an unincorporated association, and the Estate of Benjamin Nathaniel Smith, Defendants.
United States District Court, N.D. Illinois, Eastern Division.
August 23, 2001.
Glenn Greenwald, Greenwald, Christoph & Holland, P.C., New York City, for Defendants.
MEMORANDUM OPINION AND ORDER
MORAN, Senior District Judge.
Defendants Matthew Hale, The World Church of the Creator, and the Estate of Benjamin Nathaniel Smith have filed objections to Magistrate Judge Ashman's resolution of this discovery dispute. See Fed.R.Civ.P. 72(a). Those objections are denied.
The magistrate judge's opinion, Anderson v. Hale, 202 F.R.D. 548 (N.D.Ill. 2001), thoroughly details the factual background, so we only summarize it here. Defendants' counsel recorded telephone conversations with various third party witnesses,
At the outset, we briefly address the timeliness issue. Defendants did not file their objections within the prescribed period. Nonetheless, we have discretion to consider the objections because this deadline is not jurisdictional. Kruger v. Apfel,
We review the magistrate judge's findings to determine whether they are "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). If the question requires an "unadulterated legal conclusion," we ordinarily perform a "more searching" review. See McFarlane v. Life Ins. Co. of N. America,
The decisive question is whether recording a phone conversation without so disclosing is inherently deceitful. There is a split of authority. Plaintiff, and the magistrate judge, rely on an American Bar Association opinion and its progeny. See ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 337 (1974) (finding surreptitious recording by attorneys inherently deceitful); 202 F.R.D. at 555 (collecting ethics opinions and cases). A clear majority of jurisdictions, and all the federal courts to consider this issue, agree with this view. Defendants counter with what they describe as "more recent" and "better reasoned" opinions reaching the opposite result. See id. Whether the minority opinions can properly be characterized as more recent is debatable, but largely beside the point. More importantly, the magistrate judge found the majority position better reasoned, and so do we.
Defendants' attacks on the magistrate judge's opinion are unpersuasive. They argue that the plain meaning of the rule does not prohibit surreptitious taping. But the law recognizes, in countless areas, that omitting material facts can be as misleading as affirmative misstatements. Attorneys, as officers of the court, are held to a particularly high standard of candor. This may include volunteering information that is not explicitly requested. That a conversation is being recorded is a material fact that must be disclosed by an attorney. Defendants also argue that modern technology and norms make the 1974 ABA opinion obsolete. The fact that recording conversations is much simpler and more pervasive now does not make it proper. If anything, it makes the need for this rule more compelling. The magistrate judge did not accept the ABA opinion blindly. He addressed each of these arguments, and his reasoning in rejecting them is thorough and logical. We agree with Magistrate Judge Ashman's reasoning in its entirety, and consequently need not repeat it here.
The magistrate judge's reasoning, once again, is sound. By appearing pro hoc vice, counsel agrees to familiarize himself with and abide by local rules and local law, including substantive law. Regardless of whether this statute is directly applicable to out-of-state recordings, it provides a reference point for what rights must be respected by attorneys practicing here.
Given the rhetoric in the papers filed with respect to this difficult ethical question, we wish to clarify one last matter. We are applying rules here, not judging character. As the magistrate judge noted, although ultimately unsuccessful, defendants' arguments were reasonable. Defense counsel could have reasonably believed that his conduct was permissible. Although we find that his conduct did violate the rules, our rejection of his position does not equate to an indictment as an unethical person.
For the foregoing reasons, defendants' objections are overruled. Per the magistrate judge's order, they must cease the practice of recording witnesses without consent and disclose any recordings currently in their possession.
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