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In an advisory opinion, New York City's bar ethics committee says the default should be not to let AI record the call
This opinion is about the notetaker running in the meeting rather than about checking what a model produces, and it reaches conversations with witnesses, opposing counsel and people who never become clients.
Bottom line: An advisory opinion, not a rule and not a disciplinary decision. It construes the New York Rules of Professional Conduct, which are binding, and its advice is that the default practice should be not to record.
Who this affects: New York attorneys and anyone at a firm who joins calls with an AI notetaker running, plus the general counsel and risk partners who write the firm's recording policy.
Issue date: 5 August 2026. Advisory from issue, with no commencement date and no transition period.
What changed: The Committee extended its earlier AI-recording guidance past the attorney-client relationship, to co-counsel, prospective clients, opposing counsel, witnesses, and the firm's own investigators and agents.
Analysis: The consent point will be familiar. The default point is the one that bites: the opinion's recommendation is against recording unless there is a good reason in the particular instance, which runs the other way from how many firms have deployed these tools.
Primary sources: NYC Bar Formal Opinion 2026-2
- Instrument (EN)
- Formal Opinion 2026-2, Ethical Issues Affecting Use of AI to Record, Transcribe, and Summarize Conversations with Persons Who Are Not Clients
- Authority
- New York City Bar Association, Committee on Professional Ethics (Michael E. Salzman, Chair)
- Jurisdiction
- United States, New York
- Status
- Issued 5 August 2026
- Bindingness
- Advisory. The opinion construes the New York Rules of Professional Conduct, which are binding on New York attorneys. The opinion itself is not.
- Rules construed
- 1.1, 1.18, 3.4, 4.2, 4.3, 8.4
- Issue date / next deadline
- Issued 5 August 2026. No commencement date and no transition period.
- Primary source
- https://www.nycbar.org/reports/formal-opinion-2026-2-ethical-use-of-ai-for-recording-transcribing-and-summarizing-non-client-conversations/
What the Committee actually said
The question the Committee set itself is narrow and practical: "What ethical issues should attorneys consider when using AI-enabled communications tools that can record, transcribe, and summarize conversations with persons who are not clients?"
Its answer has two halves. On consent, "an attorney should obtain consent of all other parties to a call before recording it, and should consider whether recording, transcribing and summarizing is tactically well-advised in the particular circumstances."
On whether to record at all, the opinion is more pointed. Its recommendation is that "as the default practice (that is, absent a good reason to record a conversation in a particular instance) an attorney should avoid recording conversations because recording entails ethical and tactical risks."
The opinion is advisory. What it construes, the New York Rules of Professional Conduct, is not.
The line about turning the feature off
Restating its earlier guidance, the Committee says that under Rule 8.4 "attorneys must not surreptitiously record conversations, including videoconferences, with any third parties. Attorneys must disclose the intention to record the conversation and obtain permission from all participants."
Then it ties that default to the attorney's own competence obligation. Under Rule 1.1, "the duty of competence includes knowing how to turn off the recording function, so that conversations are not inadvertently recorded."
For a firm that has rolled out a notetaker across its meetings, that places knowing how to disable the feature inside the competence duty itself.
Consent is harder than it looks when the tool enforces it
The Committee notices something most guidance skips. "Features in the AI recording technology may complicate the process of obtaining informed consent, because the technology may lock people out of the discussion if they do not grant consent to the recording."
The opinion treats that friction as one of the reasons its default runs against recording.
Where it bites: five contexts beyond the client
The earlier opinions were framed around the attorney-client relationship, though Opinion 2025-6 already reached surreptitious recording of "any third parties". This one states that those general principles "apply to a wide variety of contexts beyond the specific context of the attorney-client relationship", and works through co-counsel, prospective clients, opposing counsel, witnesses, and the attorney's own employees and agents such as investigators.
On witnesses the reasoning is the sharpest. Recordings "are potentially discoverable. This creates a risk that preserving, transcribing, and summarizing a recording will jeopardize confidentiality, create unfavorable evidence out of context, and perhaps place protected work product at risk." The opinion applies its general default against recording to that context.
On prospective clients the Committee describes a paradox under Rule 1.18. A record helps show that only the minimum confidential information was taken and that no attorney-client relationship formed. But a record sitting inside a firm that then declined the matter "creates the risk of information sharing and a potential conflict of interest".
On opposing counsel it flags settlement discussions and mediation, where attorneys "need to take special care to protect the evidentiary privileges that attach to such discussions".
The practical consequence for a firm
There is also a billing point. Recording "may add obligations to review transcripts and summaries of those conversations for accuracy, thereby potentially adding to costs/fees."
The opinion does not prescribe implementation steps, and the following is our inference from its reasoning rather than its text. A firm applying it would likely start by checking whether its tools record by default at all, then set an internal rule for who may authorise recording and on what stated basis, ensure disclosure and permission come from every participant rather than the host alone, and decide what happens to the transcript of a conversation with a prospective client the firm turns away.
The opinion also carries a narrow footnote in the other direction: a different balance may be called for where an attorney has a hearing impairment and AI transcription supports competent representation under Rule 1.1. The Committee frames that narrowly.
What this is not
It is not a court rule and nobody has been disciplined under it. It is the considered view of a city bar committee about how existing Rules apply to a new tool.
It is also not a statement of New York's recording law. The Committee is addressing the ethical duty under the Rules of Professional Conduct. Whether a given recording is lawful under state or federal wiretap statutes is a separate question that this opinion does not answer, and we are not answering it either.
Switch the default. On the Committee's reading of the Rules, an AI notetaker should be off unless there is a specific reason to record that call, every participant should be told and asked, and competence includes knowing how to turn the feature off before a conversation is captured by accident.
Source File
Open the opinion on the NYC Bar site and confirm the 5 August 2026 date, the Committee and Chair, the Rules listed in the DIGEST, and the default-practice sentence in the Conclusion.
As the default practice (that is, absent a good reason to record a conversation in a particular instance) an attorney should avoid recording conversations because recording entails ethical and tactical risks. ยท NYC Bar Formal Opinion 2026-2, 5 August 2026
FAQ
Is this binding on New York lawyers?
The opinion itself is advisory. It is issued by the New York City Bar Association's Committee on Professional Ethics and it construes the New York Rules of Professional Conduct, which are binding on New York attorneys. The Rules are the enforceable part; the opinion is the Committee's reading of them.
What default does the opinion recommend?
Not recording. It recommends that absent a good reason to record a particular conversation, an attorney should avoid recording, because recording carries ethical and tactical risks. Where recording does happen, the opinion says consent should be obtained from all other parties first.
Does it cover opposing counsel and witnesses?
Yes. It extends the Committee's earlier client-focused guidance to co-counsel, prospective clients, opposing counsel, witnesses, and the attorney's own employees and agents such as investigators. For witnesses it notes recordings are potentially discoverable and can create unfavourable evidence out of context.
What should a firm change first?
The opinion does not prescribe implementation steps. Applying its reasoning, a firm would likely start by reviewing whether its meeting tools record by default, and by setting an internal rule for who may authorise recording and on what stated basis. The opinion does tie this area to competence under Rule 1.1, saying that duty includes knowing how to turn the recording function off so conversations are not captured inadvertently.
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