Similar to guidance the association issued last year regarding communications with clients, Formal Opinion 2026-2 finds that members of the NYCBA who speak with nonclients on audio or video calls must obtain permission to use AI to record the conversations. But tactical and practical considerations mean it is not always advisable to do so, the opinion said.
"AI systems that record, transcribe, and summarize conversations can be useful tools, but attorneys must be mindful of the ethical issues that arise when AI is used for this purpose ... the default practice should be not to use AI tools to record, transcribe or summarize conversations absent a good reason in a particular instance," the opinion said.
The NYCBA, which counts more than 20,000 New York City lawyers among its members, periodically issues nonbinding ethics guidance interpreting the New York Rules of Professional Conduct.
The newest opinion was published days after a NYCBA committee issued a policy paper calling for a unified national framework for the ethical use of AI in legal work, and comes on the tail of prior AI-focused ethics opinions. Last year, the association produced guidance on using AI to record, transcribe and summarize client conversations.
That guidance, Ethics Opinion 2025-6, came to a similar conclusion: a lawyer "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."
Monday's opinion widens the focus, sharing best practices for AI recordings of conversations with co-counsel, prospective clients, opposing clients, witnesses and the attorney's employees or agents, including investigators.
When it comes to recording conversations with co-counsel, lawyers should consider baking their recording policies into joint defense or common interest agreements, the guidance suggests, as well as considering what steps to take if conversations are "inadvertently recorded."
Using AI to record communications with prospective clients presents a "paradox," the NYCBA said. While it may help an attorney be more efficient, the opinion acknowledged, storing the contents of a conversation with an individual who doesn't become a client may raise potential conflicts moving forward and create a risk of information sharing.
Conversations with opposing counsel may not raise privilege and confidentiality concerns often, but issues may arise in using AI to record mediation or settlement discussions, the opinion said. In those instances, attorneys must take extra care to protect confidentiality and privilege.
AI recordings of conversations with witnesses may be discoverable, the NYCBA warned, finding it particularly inadvisable to create such records of conversations with potential witnesses due to the possibility that confidentiality may be breached. Similarly, conversations with investigators and other employees could be requested in discovery, leading the opinion to also caution against creating such records.
--Additional reporting by Andrea Keckley and Tracey Read. Editing by Drashti Mehta.
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