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SPECIAL TO THE NATIONAL LAW JOURNAL Proving employment discrimination or the existence of a hostile work environment just became easier for plaintiffs. And safer for their counsel. A New York state trial court has ruled that it is ethically proper for attorneys to advise their clients on how to surreptitiously tape-record their conversations with managers, co-workers and other third parties. The March 20 decision by Justice Herbert Kramer in Brooklyn, N.Y., in Mena v. Key Food Stores Co-operative, No. 6266/01 (Kings Co., N.Y., Sup. Ct.), clarifies an issue that has vexed plaintiffs’ attorneys around the country and left them uncertain about what they could-and couldn’t-say to their clients. It is the first court ruling on the issue since the American Bar Association (ABA) reversed its stand in 2001 and issued an ethics opinion that supports an attorney’s right to provide advice on surreptitious taping. The direct precedential effect of the ruling is limited because it was issued by a state trial court, not an appellate court, and because each state sets its own ethic rules for attorneys. However, because there are so few rulings on this issue and this is the first to interpret the ABA’s Formal Ethics Opinion 01-422, adopted on June 24, 2001, some expect that Kramer’s ruling will have an impact far beyond New York. It may well affect the behavior of attorneys in the 38 states and the District of Columbia, where it is legal for a party to a conversation to record it without the consent or knowledge of the other participants. The ruling could have its biggest impact on employment discrimination and harassment suits, since plaintiffs often face difficulties in garnering hard evidence to prove their cases. “Sexual harassment doesn’t take place in department store windows,” said Joshua Friedman, a solo practitioner in New York City who represents plaintiffs in employment law matters. As a result, discrimination cases typically come down to whose testimony a jury will believe-the plaintiff’s or the defendant’s. Audiotape evidence can greatly alter these dynamics. “I view the tapes as a kind of truth serum,” said Marc Rapaport, a solo practitioner who represents the plaintiffs in Mena. “Instead of a ‘he said-she said’ case, now jurors will know that at least some of the things-those caught on tape-were said. It is a very powerful tool.” In Mena, three employees of Key Food supermarkets sued the company for racial and sexual bias in the workplace, seeking $45 million in damages, plus punitives. The plaintiffs complained that obscenities and offensive epithets were commonly directed at women and blacks in Key Food offices. Prior to filing suit, one of the plaintiffs consulted Rapaport, and he advised her how to surreptitiously tape conversations with her supervisor, Richard Grenard. The tapes caught Grenard making derogatory comments about blacks and, according to Rapaport, about women. When the discrimination suit was later filed, Key Food and Grenard denied any wrongdoing. Rapaport subsequently produced for Key Food a tape in which Grenard asks whether a job applicant is a “f*****g n****r,” whether she has dreadlocks and if she smells. A month or so later, Rapaport disseminated this information to the press. At that point, Key Food fired Grenard. Key Food struck back in court, moving to suppress the contents of the taped conversations and disqualify Rapaport from any further representation of the plaintiffs. Such relief was needed, Key Food claimed, because Rapaport’s advice on surreptitious taping had violated New York State Bar Disciplinary Rule 1-102, which prohibits attorneys from engaging in “conduct involving dishonesty, fraud, deceit, or misrepresentation” and which prevents attorneys from circumventing “a disciplinary rule through the actions of another.” The court denied the motion, ruling that no ethical violation had been committed. Kramer wrote, “Contemporary ethical opinions hold that a lawyer may secretly record telephone conversations with third parties without violating ethical strictures, so long as the law of the jurisdiction permits such conduct,” citing the 2001 ABA ethics opinion. In 1974, the ABA issued an ethics opinion stating that surreptitious taping was unethical. But over time, many bar associations and state ethics authorities have rejected this flat bar and concluded that surreptitious taping was ethical for a wide variety of purposes, such as gathering evidence of housing discrimination and trademark infringement. In 2001, the ABA ethics committee found these numerous exceptions threatened to swallow up the general rule, so it was time to change the rule. The ABA committee also found in 2001 that times had changed; recording devices had become commonplace, and people now realized that their conversations might be recorded without their consent. The committee noted, in addition, that the ethics rules had changed since 1974. The new rules spell out attorneys’ responsibilities for dealing with third parties: Rule 4.4 of the Model Rules forbids attorneys from using methods to collect evidence “that have no substantial purpose other than to embarrass, delay or burden a third person,” or methods “that violate the legal rights of” individuals. When surreptitious recordings meet ethical standards, they should be allowed, the ABA committee concluded. Although surreptitious taping may be ethical, some attorneys who represent companies doubt the tapes will become a panacea for the plaintiffs’ bar. “Supervisors tell me pretty frequently that they think they are being recorded [by disgruntled employees],” said Terri Butler-Stivarius, a partner in the Atlanta office of San Francisco-based Littler Mendelson, an employment-defense firm. It is unclear how many of these recordings are made pursuant to the advice of an attorney, but few of the tapes wind up being used in litigation, Butler-Stivarius said. “These tapes can really backfire on a plaintiff, unless there is a smoking gun, which may be why they aren’t produced.” Surreptitious taping may also help plaintiffs gather evidence in other types of cases, including family law disputes, civil fraud suits and consumer protection cases. Brian Bromberg, a New York attorney, represents debtors who sue collection agencies that violate the federal Fair Debt Collection Practices Act. He said debtors often face difficulty proving what the collection agencies have said over the phone. He said, she said “We hesitate to get involved in many cases that are ‘he said, she said,’ because it is much more difficult to prove” a violation, said Bromberg. Clients surreptitiously taping the threatening phone calls from collection agencies could make a big difference in these types of cases, he said, but he said he has been leery of advising his clients to take such action. “I thought it might be a violation of the canons of legal ethics,” he said. After Mena, “I won’t be as hesitant.” Meanwhile, in the Key Foods case, the plaintiffs have moved for partial summary judgment, based on the tapes and witness testimony, and the dismissal of the defendants’ answer because of alleged spoliation of evidence. Oral arguments on these motions are scheduled for May 9. Key Foods’ spokesman and its attorneys did not return calls seeking comment.

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