In 2025, the New York City Bar Association issued an opinion regarding the use of AI to record, transcribe and summarize communications with clients.  The Association concluded that an attorney should obtain client consent before recording the call, should consider whether recording, transcribing and summarizing is tactically well-advised in the particular circumstances, including issues of confidentiality and privilege, and should check the work product for accuracy if there is a possibility the transcription or summary will be preserved and potentially relied upon. If an attorney knows that a client is recording a call with an AI tool, the lawyer should advise the client of the disadvantages of doing so.

In 2026, the Association revisited the issue, this time in the context of recording, transcribing and summarizing conversations with people who are not clients:

With respect to Co-Counsel and other Aligned Counsel – “Steps must be taken to ensure that recordings and summaries of conversations with co-counsel are not accessible beyond attorneys and others involved in the joint representation, in order to preserve the privilege. In addition, counsel should consider including a provision in any joint defense or common interest agreement specifying whether conversations will be recorded and what steps will be taken if the conversations are inadvertently recorded.”

With respect to Prospective Clients – “On the one hand it may be helpful to have a record of the conversation so that an attorney can make a better decision about whether to accept the case and, should the attorney decline, to document the bases for declining if the attorney desires to preserve a documentary record. In addition, making and preserving the recording of the conversation will establish that only the minimum of confidential information needed to make a determination about representation was obtained, and that no actual attorney-client relationship was formed. On the other hand, having a record that is accessible within the firm that turned down the client creates the risk of information sharing and a potential conflict of interest both for the individual attorney whom the prospective client consulted and for that attorney’s firm under Rule 1.18. As in other situations discussed in this Opinion, the default practice (that is, absent a good reason to do so in a particular instance) should be not to record the conversation.”

With respect to Opposing Counsel – “Although privilege and confidentiality concerns do not arise as often in conversations with opposing counsel as in some of the other contexts addressed in the opinion, they may arise in connection with settlement discussions or mediation. If the settlement discussions or mediation are recorded, attorneys therefore need to take special care to protect the evidentiary privileges that attach to such discussions and the confidentiality of any client information that is disclosed in the course of such discussions.”

With respect to Witnesses – “Conversations with witnesses and potential witnesses implicate Rule 3.4 (fairness to opposing party and counsel), Rule 4.2 (communication with person represented by counsel), and Rule 4.3 (communication with unrepresented persons). While there is value in making and preserving recordings to document what was communicated to (or by) the witness or potential witness in order to show compliance with these Rules or for some evidentiary purpose, these 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. Because the potential risks ordinarily outweigh the benefits, the default practice should be not to record the conversations.”

With respect to Employees and other Agents (e.g. Investigators) – “There is value in making and preserving recordings to memorialize how the employee or agent dealt with a witness or other third party in order to establish compliance with Rules 4.2, 4.3, and 8.4. But because the recording and preservation of conversations conducted by the employees or agents may jeopardize confidentiality and privilege, and because questions will often arise about the means by which the employee or agent obtained consent, the risks of recording the conversations typically outweigh the benefits, and the default practice should be that these conversations will not be recorded.”

 

New York City Bar Association Formal Opinion No. 2026-2

(see also New York City Bar Association Formal Opinion No. 2025-6)