AI notetakers and recorded calls: the NYC Bar's new opinion and Oregon's recording law

Informational only, not legal advice. TacticalMS is not a law firm. Read more.

New York City Bar Formal Opinion 2026-2, issued August 5, 2026, says lawyers using AI tools that record, transcribe and summarize calls with people who are not clients should get the consent of all other parties first, and that the default practice should be not to record at all ¹. The opinion interprets New York's rules and does not bind Oregon lawyers ¹. It still lands on a question many Oregon firms face, because Oregon's own recording statute, ORS 165.540, requires that all participants in a conversation be specifically informed before it is obtained by a device ². Our small-firm AI use policy checklist lists the questions a firm AI policy commonly covers, including which tools are approved.

What New York City Bar Formal Opinion 2026-2 asks

The New York City Bar Association's Committee on Professional Ethics framed the question this way: "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?" ¹. The opinion builds on two earlier City Bar opinions: Opinion 2024-5 on generative AI and Opinion 2025-6 on recording conversations with clients ¹.

What the NYC opinion says about consent and the default

The opinion says that "as is true with clients, an attorney should obtain consent of all other parties to a call before recording it" ¹. It also says lawyers should consider whether recording is tactically sound in the circumstances ¹.

The opinion's overall position is that, absent a good reason in a particular instance, "the default practice should be not to use AI tools to record, transcribe or summarize conversations" ¹. A footnote in Opinion 2026-2 notes that a different balance may apply when a lawyer has a hearing impairment and needs AI transcription to represent a client competently ¹.

What Opinion 2026-2 says about competence

Under Rule 1.1, the opinion says lawyers need "sufficient mastery of and confidence in using the AI tools" they adopt ¹. It adds that "the duty of competence includes knowing how to turn off the recording function" ¹.

How Opinion 2026-2 treats each kind of non-client

The NYC opinion discusses several groups separately ¹:

• Prospective clients (Rule 1.18). The opinion calls the question a "paradox" and warns that an accessible record "creates the risk of information sharing and a potential conflict of interest" ¹.
• Witnesses. The opinion says the risks "ordinarily outweigh the benefits," so the default is not to record, and it notes that recordings are "potentially discoverable" ¹.
• Co-counsel. The opinion says recordings and summaries should not be accessible beyond those in the joint representation, to preserve privilege, and suggests addressing recording in joint defense or common interest agreements ¹.
• Opposing counsel. The opinion says privilege and confidentiality concerns "may arise in connection with settlement discussions or mediation" ¹.
• Employees and agents, such as investigators. The opinion says the risks of recording "typically outweigh the benefits," so the default is again no recording ¹.

What Oregon's ORS 165.540 says about recording

Oregon's statute treats phone calls and conversations differently. ORS 165.540(1)(a) covers telecommunications and radio communications a person is not a participant in, and allows them to be obtained if "consent is given by at least one participant" ². ORS 165.540(1)(c) covers conversations, and prohibits obtaining any part of one by a device "if not all participants in the conversation are specifically informed that their conversation is being obtained" ². Under ORS 165.540(9), a violation of subsection (1) is a Class A misdemeanor ².

ORS 165.540(6)(a) lists exceptions for recordings made with an unconcealed device or through a video conferencing program ². Those exceptions include public meetings, classes, and private meetings or conferences "if all others involved knew or reasonably should have known" that the recording was being made ². The quotes above are from the 2025 edition of the Oregon Revised Statutes, which notes that some chapter 165 sections were amended in the 2026 session ².

What is unsettled for AI notetakers in Oregon

Tonkon Torp's February 4, 2025 alert said "Oregon courts have not yet addressed the application of ORS 165.540(1)(c) to AI tools" ⁴. The alert said AI tools that record conversations "likely fall within the prohibition," and it said that when a notetaker is hidden, such as not visible on screen in a virtual meeting, participants should be notified ⁴. It also warned that a notetaker "could send notes or a transcript to someone who should not be aware of the meeting" and "may mishear or mistake what is said" ⁴.

These are one law firm's reading of the statute, not a court ruling ⁴. Whether a particular notetaker setup meets ORS 165.540 is a question for a licensed Oregon attorney.

What the ABA Law Practice column adds

In a column in the ABA's Law Practice Magazine (November/December 2025 issue), ethics lawyer Lucian T. Pera described a notetaker that recorded his calls without his permission: "I never agreed to this and was never told it would do this" ³. He wrote that he "was never asked to review any terms of service" ³.

Pera's column points to questions about a tool's terms of service and confidentiality promises, where recordings and transcripts are stored and for how long, and whether summaries become part of the client file ³. On accuracy, he wrote that AI output "is often seductively good," and that summaries can misassign tasks or misidentify speakers ³.

Factual questions the sources raise about notetakers

The opinion, the statute and the column point to factual questions about how a firm's own tools are set up ^{1, 2, 3}:

• Which of the firm's meeting tools have AI notetaker or auto-join features turned on ³?
• Where recordings, transcripts and summaries are stored, and for how long ³?
• When the firm records, and how participants are told ^{1, 2}?

Not legal advice. This post is general information about law and technology, not legal advice. It does not create an attorney-client relationship, and TacticalMS is not a law firm. Laws, rules and ethics opinions change; check the cited sources and talk with a licensed Oregon attorney about any specific situation. Researched and drafted with AI tools from the sources above and checked against our editorial standards. Spot an error? Email intake@tacticalms.dev and we'll fix it.