Opinion 2000-1
(February 2000)

The inquirer has asked this Committee to analyze the ethical implications for an attorney utilizing a recently-developed software program which purports to instantaneously analyze speech patterns to determine the veracity of the speaker. The technology firm that developed the software has asked the inquirer to use it in the inquirer's law practice "to determine its validity in real life situations."

The technology purportedly can operate in two different modes: one in which a voice sample is recorded and one in which it is not. Recognizing that "Pennsylvania is a 'two-party' wiretap jurisdiction, requiring the informed consent of all parties before the recording of a conversation," the inquirer asks:

1. Are there any ethical prohibitions for use of the technology by an attorney in Pennsylvania in private practice with two-party consent?

2. Are there any requirements to notify opposing counsel of the use of the technology during a proceeding in which the recording activity is obvious, such as a deposition?

3. If used in a mode that does not record the conversation, or if notice is given that a telephone conversation will be recorded, does the use of the software for online and/or offline analysis violate any ethical proscriptions?

Use in private practice with two-party consent

a. Operation of the software

The inquirer asks us to assume that "two-party consent" to the use of the software has been obtained (including the person whose speech is to be analyzed), and asks for guidance as to the propriety of its use in private practice. We are not aware of any Rule of Professional Conduct that would prohibit the operation of the software (as opposed to the use of the results obtained from its use, discussed separately below) but note with significance that the inquirer's reference to "use in private practice" is too broad to permit us to give blanket assurance of its ethical propriety for any potential use by a practitioner.

In obtaining the consent of the speaker, the inquirer must be careful not to violate Rules 1.4 (requiring a lawyer to explain a matter to the extent necessary to permit the client to make an informed decision); Rule 4.1 (relating to Truthfulness in Statements to Others); Rule 4.4 (concerning Respect for Rights of Third Persons); and Rule 8.4 (prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation). The inquirer should disclose, for example, not only the fact of use of the software, but also the purpose of its use, the intended use of the results obtained by using the software, and the uncertainty (if any) regarding the accuracy of the technology.

In obtaining the consent of a person represented by counsel, the inquirer should make proper arrangements through that person's counsel and obtain the consent of that person's counsel so as not to violate Rule 4.2 (concerning Communication with Person Represented by Counsel).

The inquirer should be especially wary of using the software with a person of adverse interest who is not represented by counsel, and be guided by Rule 4.3 in dealing with such a person.

b. Using the results of the voice analysis

Once the inquirer has operated the device and reviewed the results of its analysis, the inquirer's ability to use those results thereafter is uncertain.

If the inquirer has reason to believe that the results are inaccurate or inconclusive, for example, use of those results as evidence in court may violate Rule 3.3 (addressing Candor Toward the Tribunal) and/or Rule 3.4 (pertaining to Fairness to Opposing Party and Counsel). 1

Using the results of a voice analysis of one's client is equally problematic. If a client intends to testify to facts which the device has already found to be untruthful, the inquirer must carefully assess the accuracy of those results in determining whether the client is about to commit perjury, and where appropriate follow the dictates of Rule 1.16 (Declining or Terminating Representation), Rule 3.3 (Candor Toward the Tribunal), and/or Rule 3.4 mentioned above.

Use at a deposition

A person testifying at a deposition expects that testimony offered on the record will be transcribed and may be used thereafter at trial or in some other context. However, neither the deponent nor an attorney attending the deposition has reason to anticipate that the deponent's speech patterns will be calibrated and analyzed on a basis such as propounded for the described software. Using the software surreptitiously at the deposition, without the consent of the deponent and counsel present at the deposition, therefore may be deemed to violate Rule 4.1 (Truthfulness in Statements to Others), Rule 4.4 (Respect for Rights of Third Persons) and Rule 8.4 (prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation).

In contrast, we see no ethical violation in using the software to analyze a lawfully-obtained, lawfully-created tape recording or videotape originally prepared for some other purpose, as long as: (1) it does not violate any restriction placed on the recording or videotape by law or otherwise, (2) the creation of the recording or videotape involved no deception. In other words, if the inquirer comes into possession of a lawfully-created tape recording without restrictions as to its use, the software may be used to analyze the speech patterns on the tape. We distinguish that scenario, however, from a situation in which the inquirer knows before making a tape that the inquirer intends to use the software to analyze it, yet fails to disclose that intention to the speaker.

Use without recording conversation

It is beyond the function of this committee to determine if the use of the software will violate any law, except to state the obvious: that an attorney who commits a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects has engaged in professional misconduct in violation of Rule of Professional Conduct 8.4.

Nevertheless, we caution the inquirer not to read applicable "wiretap" statues too narrowly. Such statutes typically prohibit not only the recording of communications, but also the broadly-defined "interception" of communications by any "device." Using the software in its "non-recording mode" therefore may not, in and of itself, avoid a violation of law or the Rules of Professional Conduct.

CAVEAT: The foregoing opinion is advisory only and is based on the facts set forth above. The opinion is not binding on the Disciplinary Board of the Supreme Court of Pennsylvania or any other court. It carries only such weight as an appropriate reviewing authority may choose to give it.

(1) We express no opinion as to whether such evidence would be admissible.

     

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.