Tapes could level playing field in employment cases.

Attorneys can advise clients who face discrimination and harassment on the job to surreptitiously tape managers and coworkers, a New York state court has ruled.

Employment lawyers said the Match decision in Mena v. Key Food Stores Cooperative could change the dynamics of hostile-work-environment cases, which typically follow a "he-said, she-said" pattern and rest largely on the perceived credibility of the various parties.

As a state trial court ruling, the decision has limited binding effect, but it may have a wider impact because it is the first decision on clandestine taping to follow the American Bar Association's relaxation of its rules on the practice in 2001. (No. 6266/01 (N.Y., Kings County Sup. Ct. Mar. 20, 2003).)

The ruling clarifies an issue that affects lawyers in 38 states and the District of Columbia, where it is legal for a party to record a conversation without the knowledge or consent of other parties involved.

"For once, you've got a situation where you can't just deny everything and pretend that it's all just wonderful at the company," said Marc Rapaport of New York City, who represents the three plaintiffs in Mena. "The tapes create a wonderful piece of evidence that any plaintiff would like to have. It changes ... a very difficult playing field for plaintiffs."

Douglas Catalano of New York City, the attorney for Key Food Stores, could not be reached for comment.

The plaintiffs in Mena say it was commonplace at Key Food supermarkets to hear obscenities directed at women and African Americans. Before filing suit, a plaintiff spoke with Rapaport, who advised her to secretly tape conversations with her supervisor, Richard Grenard. On one of the tapes, Grenard asks whether a job candidate was a "f--g n--r," whether she had dreadlocks, and whether she smelled. He was fired shortly after Rapaport released the information to the press.

Nonetheless, Key tried to suppress the tapes in court, claiming they were barred by state statutes prohibiting attorneys from engaging in "conduct involving dishonesty, fraud, deceit, or misrepresentation." The court round otherwise. Citing the 2001 ABA ethics opinion, Judge Herbert Kramer said, "Contemporary ethical opinions hold that a lawyer may secretly record telephone conversations with third parties without violating ethical strictures, so long as the law of the jurisdiction permits such conduct."

Attorney Jeffrey Needle of Seattle, who represents plaintiffs in civil rights cases, said that taping could be a powerful tool in whistleblowing litigation but could have negative repercussions in the short term.

"If you're a boss, and you found out chat an employee was surreptitiously tape-recording your conversations, what would you do?" he asked. "You'd fire that employee. And you'd probably be justified under the law. How could you trust that employee again?"

The ABA prohibited attorneys from encouraging secret taping in 1974, when the Watergate scandal had alerted the nation to its dangers. Over the years, state bar associations and other ethics authorities have rejected the outright ban, which ultimately led the ABA to revise its own rules.

Rapaport said he expects the impact of the tapes to be explosive when he introduces them at trial, expected to start this fall. "The existence of the tapes makes it impossible for the defense to deny these things," he said.