9th Annual Lively M. Wilson Memorial Lecture Series on Ethics, Professionalism and Civility: Speak into the Microphone and Keep Your Voice Up, Please: The Ethics of Secretly Recording Witnesses, Lawyers and Clients
This program will examine the ethical issues that arise when lawyers record conversations without the knowledge of one or more participants, during the pretrial investigative stage and throughout trial and post-adjudicative proceedings. The following questions are among those that will be addressed:
Is secretly recording conversations with one or more parties inherently deceitful conduct by a lawyer? May it be justified when necessary to further a legitimate societal end?
May prosecutors secretly record as part of a covert investigation, e.g., a sting operation?
Is there an exception in the KRPC for secretly recording targets, subjects or witnesses in criminal cases?
Are exceptional circumstances needed to justify a lawyer recording a client?
May lawyers secretly record conversations with other lawyers? Does it make a difference whether the case is a civil or criminal matter?
Make plans to attend this provocative discussion of a complex area of professional ethics and the practice of law, which has generated considerable disagreement among bar associations, courts and legal scholars.
Panel: Elizabeth Jones Brown, Office of the Commonwealth’s Attorney; Professor William H. Fortune, UK Law; Susan D. Phillips, Phillips Parker Orberson & Arnett; Leo G. Smith, Louisville Metro Public Defender’s Office. Moderator: Hon. Thomas B. Wine, Office of the Commonwealth’s Attorney
This CLE is a partnership with The Louis D. Brandeis Inn of Court, the Louisville Bar Association and Stites & Harbison, PLLC
Handouts
Speak into the Microphone and Keep Your Voice Up, Please: The Ethics of Secretly Recording Witnesses, Lawyers and Clients
(5.88 MB)
William H. Fortune (Bill) is a 1964 graduate of the College of Law. He practiced law for five years with the firm now known as Stites and Harbison and in 1969 joined the faculty of the College of Law. He has twice served the College of Law as Associate Dean, has served the University of Kentucky as Academic Ombudsman and University Senate Chair, and in partial recognition of his great service to the students of the College of Law was honored with the University of Kentucky Great Teacher Award in 2001.
Professor Fortune has shown unmatched commitment to some of the most crucial obligations of the legal profession. He was the first president of the Central Kentucky Legal Services Corporation, has served as a member of Kentucky’s Public Advocacy Commission, and most importantly has three times taken leave from the College of Law to provide legal services to the indigent—serving two years as a federal public defender in California, two years as a federal public defender in Kentucky, and one year as an assistant public advocate in eastern Kentucky. Additionally, he has served the KBA like very few lawyers have ever done, as (1) a drafter of the state’s Evidence Rules, (2) a member of the Model Rules of Professional Conduct Committee, (3) as counsel for the Ethics Committee of the Kentucky Judiciary, (4) as the author of numerous books and articles on professional responsibility, and (5) through more presentations on continuing legal education that perhaps any other lawyer of Kentucky has ever made. In recognition of his great service to our profession, Professor Fortune was awarded the 2008 KBA Thomas B. Spain Award and in 2009 received from the Kentucky Supreme Court the Chief Justice’s Special Service Award.
Susan has been one of Louisville’s leading litigators and an active member of the local bar for over three decades. She has tried over 50 jury trials and has only been disappointed in one verdict in her career. She has been inducted as a Fellow in the American College of Trial Lawyers (becoming the first woman in Kentucky to receive the honor) and is the past Kentucky state chair of the organization. She has an AV Preeminent rating from Martindale Hubbell and has been selected as one of the Best Lawyers in America and a Super Lawyer in Kentucky. Susan is currently serving as President of the Louisville Bar Association.
Her legal career has always involved civil defense litigation, and Susan primarily concentrates in the defense of medical negligence cases representing hospitals, physicians, and other healthcare professionals. She also defends municipalities and handles employment cases, most prominently defending sexual harassment claims.
Susan graduated from the University of Kentucky College of Law in 1981. While a student at U.K., she was awarded the American Jurisprudence Award for Litigation, was a member of the Kentucky Law Journal, and a member of Moot Court Board. Following graduation from law school, Susan joined the firm of Boehl Stopher & Graves, where she practiced from 1981-1999, becoming a partner in 1986. In 1999, she and four other partners founded Phillips Parker Orberson & Arnett, PLC (formerly Phillips Parker Orberson & Moore, PLC).
Susan has long been a member of the Louisville Bar Association, serving on its Executive Committee for several years and its Board of Directors; she formerly chaired the Litigation Section and Public Service Committee. She is a past President of the Louisville Bar Foundation and a past President of Citizens for Better Judges. She serves as a Trial Commissioner for the Kentucky Bar Association, is a former Commissioner on the Kentucky Commission on Human Rights, and was a member of the Evidence Rules Review Commission. She is also a Master in the Louis D. Brandeis Inn of Court and a member of the American Bar Association, Kentucky Defense Counsel (past member of the Board of Directors), and Defense Research Institute.
In her free time (which is not much), Susan loves spending time with her family. She has been married to John Phillips since 1980 and they have two children. (Yes, they really do like working together and no, they don’t always talk about the law at home.) She loves to cook, read, and travel. Susan has been an active volunteer in the community, serving in the past on the Baptist Hospital East Institutional Review Board, the Board of Directors of the Junior League of Louisville, and the fundraising board of the Center for Women and Families; she is also active in her parish, Holy Trinity Catholic Church.
Leo G. Smith is a trial attorney who serves as Deputy Chief Public Defender in the Office of the Louisville-Jefferson County Public Defender. A Louisville native, he attended St. Xavier High School, graduated from the University of Louisville with high honors and a Bachelor of Science degree in Commerce and, thereafter, graduated cum laude from the Louis D. Brandeis School of Law at the University of Louisville, where he served as Executive Editor of the Law Review. He was also a member of the Brandeis Honor Society and, upon graduation, received the Robert C. Jayes Memorial Award. For the past 29 years, he has served as a staff trial attorney and held several leadership positions with the Public Defender's Office, including Director of Training and Chief of the Adult Trial Division. He has acted as lead counsel in numerous jury trials, including several death penalty cases. In 2000, he received the Distinguished Alumnus Award from the University of Louisville's Brandeis School of Law. His work was also recognized by the Department of Public Advocacy and Kentucky Bar Association in 1999 with the presentation of its first Professionalism and Excellence Award. He has authored several articles on criminal defense practice that have been published in The Advocate, the Journal of Criminal Justice Education & Research publication of the Kentucky Department of Public Advocacy. Mr. Smith is a former member of the Board of Directors of the Louisville Bar Foundation. He is past chair of the Criminal Law Section of the Kentucky Bar Association, as well as a past chair of the Criminal Law Section of the Louisville Bar Association and a former member of the LBA Professional Responsibility Committee. Mr. Smith was trial counsel in the case of Griffith v. Kentucky, 107 S.Ct. 708 (1987), which decided the retroactivity question left open in the landmark case of Batson v. Kentucky. He has received numerous Walker Awards in recognition of excellence of advocacy in felony jury trials that resulted in the acquittal of his clients.