Can lawyers use AI notetakers? What the NYC Bar's 2026 opinions actually say

You can, and the default just flipped. On 5 August 2026 the New York City Bar's Committee on Professional Ethics issued Formal Opinion 2026-2 and wrote that absent a good reason to record a conversation in a particular instance, an attorney should avoid recording it. Not obtain consent and proceed. Avoid. That is the opposite of what almost every guide published this year tells you, and it covers calls with witnesses, opposing counsel, co-counsel, prospective clients, and your own investigator.

Here is what the two opinions actually say, and the situations where a transcript stops being a file note and becomes a liability.

The opinion that flipped the default, and why consent was never the point

There are two, eight months apart. Opinion 2025-6, issued 22 December 2025, covers conversations with clients. It concludes that an attorney should obtain client consent before recording, should consider whether recording is tactically well advised, and should check the output for accuracy if it may be preserved and relied on. That is the opinion the legal press covered in January, and it is the one behind the checklists you have been reading since.

Opinion 2026-2 extends the analysis to everyone who is not your client, and it goes considerably further. The committee gives two reasons for reversing the presumption. In many of these contexts the risk of recording outweighs the value. And the technology itself corrupts the consent process, because features in AI recording tools "may lock people out of the discussion if they do not grant consent to the recording." Consent you extracted by holding the meeting hostage is not much of a consent.

Be clear about the weight of this. These are advisory opinions of a voluntary bar association, grounded in the New York Rules, binding on nobody. They are also the most developed reasoning anyone has published on the question, and the rules they construe, 1.1, 1.18, 3.4, 4.2, 4.3 and 8.4, have near identical analogues in every Model Rules state. The press release went out on 17 August 2026. Six weeks later the search results for this question still have not caught up.

Consent, which is where every other guide stops, is the floor. New York is a one party consent jurisdiction. You could lawfully record your own calls there and the ethics opinions still say no. The reasoning traces back to the City Bar's Opinion 2003-02, which held that the ethics of undisclosed taping turn not on the other party's expectations but on "the fundamental deception being played by the lawyer who does so without telling them."

The tactical sentence is the one worth memorising. Individuals, the committee wrote, "tend to choose their words with greater care and precision when a verbatim record is being made and some individuals may not wish to speak at all under such circumstances." Undisclosed taping also hands the recording party "the unfair advantage of being able to use the verbatim record if it helps his cause and to keep it concealed if it does not."

That cuts against the notetaker even when you do disclose. Tell a nervous client at the top of a call that everything is being transcribed and you have changed what they will tell you. The candour you lose is the whole point of the meeting.

The four calls where the transcript works against you

Witnesses. Opinion 2026-2 ties these to Rules 3.4, 4.2 and 4.3. A recording is useful evidence that you complied with them. It is also discoverable. The committee's own words are that preserving, transcribing and summarising the call can "jeopardize confidentiality, create unfavorable evidence out of context, and perhaps place protected work product at risk." Its conclusion is that the risks ordinarily outweigh the benefits.

Opposing counsel. Low stakes most of the time, with one exception that matters. Settlement discussions and mediation carry evidentiary privileges, and a transcript of them is the document you will spend a motion trying to keep out.

Investigators and staff. Rule 8.4(a) makes you answerable for rule breaches committed through another person. The opinion flags that questions will often arise about how the employee or agent obtained consent in the first place. You will be defending a consent process you did not run and cannot reconstruct.

Co-counsel. Here the exposure is joint defence privilege. The committee's recommendation is concrete and takes ten minutes: put a clause in the joint defence or common interest agreement saying whether calls are recorded and what happens if one is recorded by accident.

The prospective client paradox nobody flags

This is the part of Opinion 2026-2 that no competing page covers, and it is the one most likely to catch a small firm.

Rule 1.18 governs the person who calls you about a case you have not taken. Recording that consultation helps you. It establishes that you obtained only the minimum confidential information needed to decide, which is the safe harbour in Rule 1.18(d)(2), and it documents that no attorney-client relationship formed.

Now the other edge, one sentence later in the same opinion. A record of that consultation sitting somewhere searchable inside the firm that turned the person down is exactly the fact that supports an imputed conflict later, against you and against every other lawyer in the firm. The committee sets out both halves and still lands on the same answer: do not record.

If intake was where you planned to start with AI, the safer version is in our piece on intake. The line there is process work against matter content, and a verbatim recording of a consultation is matter content by definition.

The client's own transcript is the one you cannot fix

When the client runs the tool, Opinion 2025-6 points out what you lose: control over the security settings, any ability to check the output for accuracy, any control over how long it is kept, and access to it when you prepare for trial. You are now working against a record of your own advice that you have never read.

The committee is blunt about what transcription does to informal advice. It warns of the danger that transcripts and summaries "could effectively formalize everything that was said, including informal legal advice that an attorney might have offered to the client off the cuff."

Retention cuts both ways and you choose blind. A preserved recording may later support an advice of counsel defence for your client. The same recording of "unconsidered and spontaneous remarks could provide evidence that an opponent might seek to rely on as evidence of fraudulent intent or the like." You are picking between those two futures at the moment you press record, years before you find out which one arrives.

There is also the structural question underneath all of it. Routing a privileged conversation through a third party vendor is the same problem a federal judge worked through in United States v. Heppner. If you do decide to record, the vendor needs to be on processor terms, which means a signed DPA and not a consumer plan.

In the UK the trap is somewhere else entirely

Search this question and you will get American results about two party consent statutes. England and Wales has no equivalent for someone who is party to the conversation. That is the wrong thing for a solicitor to be worrying about.

Two other things do bite. The first is paragraph 1.4 of the SRA Code of Conduct for Solicitors: you do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions. Note the word others. A silent notetaker in a call with an opponent's witness is a paragraph 1.4 question, and the SRA's "others" reaches further than most readings of Rule 8.4.

The second is UK GDPR. A recording is personal data about everyone audible on it, so you need a lawful basis and you owe the transparency obligations the ICO sets out under the right to be informed, given before the recording starts rather than buried in an engagement letter. The SRA has published nothing specific on notetakers, which means the general duties in its existing AI position are what you will be judged against.

What I would actually do

• Turn recording off at the account level in Zoom, Teams, Google Meet and your phone system. Almost every accidental recording in this area begins with a default nobody looked at.
• Client calls: record only where you can say out loud what the recording is for. Put the consent, the opt out, the retention period and your accuracy review in the engagement letter, not in a verbal aside at the top of the call.
• Witnesses, investigators, settlement, mediation: do not record. The evidentiary downside is asymmetric and it lands on your client, not on you.
• Prospective clients: do not record, and do not store consultation notes anywhere the whole firm can search them.
• If you keep a summary, review it and adopt it in writing. An unreviewed AI summary of legal advice is a draft that looks like a record, which is the worst of both.

The opinion carves out one exception and it is the right one. Footnote 2 says a different balance may be called for where the attorney has a hearing impairment and needs transcription to represent the client competently, and that for those attorneys recording may reasonably become common practice. Look at the shape of that carve out, because it is also the test. There is a stated reason tied to the representation. "It is faster" is not a reason that survives a discovery request.

If you want the underlying controls written down, our free guide covers the confidentiality steps that belong in your engagement letter, and our tool guide sets out which products run on terms a small firm can defend to a regulator.

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