Apple iOS 18.1: The Ethics Of Recording Cell Phone Calls

In fall 2024, Apple introduced a groundbreaking feature of iOS 18.1 that simplifies call and FaceTime video call recording while prioritizing user privacy and convenience. You can now record any telephone or FaceTime call and automatically have the transcript and recording stored in your Notes App on your cell phone.¹ Does it comply with the Rules of Professional Conduct for lawyers and/or client use? That is always the question for lawyers or clients who want to use any new technology, especially new artificial intelligence tools. Here's the detailed overview of how this innovative functionality works, whether you can use it as a lawyer during a client representation, and how you should counsel your clients on their use of the new technology.²

RECORDING, EDITING, AND MANAGING CALLS

• Initiating a Recording: While on a voice call or FaceTime video call, any party on the call that is using an Apple iPhone operating on iOS 18.1 can tap the "Call Recording" button in the top-left corner of their screen after the call has started. The party that clicked on the "Call Recording" will be prompted that they have chosen to record the call, and a countdown will begin on their phone. Once the countdown is over, Siri will automatically alert all participants that the call is being recorded, ensuring transparency. Siri's voice will come across the call, even if other parties are talking at the time. Siri will only alert the other participants once about the call recording; even if parties are added into the call later, there is not a renotification.
• Real-Time Transcription: Once the recording starts, a Notes App notification will appear on the party's phone that hit the "Call Recording" feature, indicating that a new note has been created for the call transcription. Only the party that hit "Call Recording" will have access to the call recording and transcript after the call; the other parties will not receive this notification.

• Stopping the Recording: If a party on the call does not want to have the call recorded, then they either need to hang up or request that the party that initiated the recording stop it. There is no other way to stop or opt out of the recording. The recording will continue until it is either stopped or the call is terminated. Only the party that initiated the "Call Recording" can stop the recording by tapping the "Call Recording" button again.
• Accessing the Transcript: After the call ends, a Notes App notification will guide the party that initiated the call to a newly created note containing the call recording and its transcription. An alert will come across the party's cell phone or the party can open their Notes App and find all their call recordings at any time.
• Storage and Organization: Recordings are stored in a dedicated "Call Recordings" folder within the Notes App. To access a specific recording: (1) open the "Call Recordings" folder; and (2) tap the desired note to view the recording and transcription. The recordings are not automatically deleted and remain in the Notes App until manually deleted.
• Search Functionality: If you have call recordings in your Notes App, you can search within the transcript by scrolling to the search bar or typing specific phrases and/or sentences to jump directly to that part of the conversation.
• Playback Options: Tap the recording to relisten to the call and use the pause button to control playback as needed.
• Summary Feature: On supported devices with Apple Intelligence enabled, tap the "Summary" button at the top of the recording to view a concise summary of the call generated by Apple's advanced AI capabilities.
• Editing Transcripts: To edit the transcript, tap the "More" button and add the transcript to Notes. You can then highlight important sections, add comments, or make edits directly within the note. However, the edits do not delete the original transcribed text of the call recording. Edits are separate and the original transcript is preserved.
• Sharing Options: You can share the call recording, along with your notes and edits, by using the Note App's share feature. This functionality ensures seamless collaboration and record-keeping. This can be utilized to send it to other parties that were on the call or anyone else that you desire.

COMPETENCY

Rule 1.1 obligates lawyers to provide competent representation to clients.³ This duty requires lawyers to exercise the "legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation," as well as to understand "the benefits and risks associated" with the technologies used to deliver legal services to clients.⁴ Lawyers may ordinarily achieve the requisite level of competency by engaging in self-study, associating with another competent lawyer, or consulting with an individual who has sufficient expertise in the relevant field.⁵ To competently use any call recording feature, lawyers need not become experts in call recordings. Rather, lawyers must have a reasonable understanding of the call recording capabilities and limitations (risks and benefits). This is not a static understanding, but lawyers must remain vigilant due to the fast-paced evolution of all AI tools.⁶

INADVERTENT WAIVER OF ATTORNEY-CLIENT PRIVILEGE

Imagine a client recording a call they are having on their cell phone with you, their attorney. The client initiates the recording, so they will be the only one that receives the recording and transcript after the call in their Notes App which is not password protected. The client does not immediately check the transcript or recording, but saves it, and after a month returns to it to prepare for their next call with you. At that time, the client also forwards the recording and transcript to another party with their notes and edits. The person to whom the transcript and recording were forwarded is not part of the attorney-client privilege. Once the client sends out the documentation, even if done so unknowingly, the attorney-client privilege is waived and now the contents and communication of the meeting are subject to discovery.

How do lawyers combat this issue when clients start recording attorney-client calls on their cell phones? There are some key things that lawyers should discuss with their clients, which are similar to the points to discuss with clients that use AI notetaking tools.⁷ Some of the key points to discuss with the client include (a) evidence creation; (b) data management practices of securing the call recordings; (c) risk of inadvertent disclosures and how to avoid.

CONFIDENTIALITY

Confidentiality⁸ is a cornerstone of the attorney-client relationship. Lawyers must keep confidential all information relating to the representation of a client, regardless of its source, unless the client gives informed consent, disclosure is impliedly authorized to carry out the representation, or disclosure is permitted by one of the exceptions under Rule 1.6(b).⁹

The use of call recording features must not compromise this fundamental rule. Lawyers must assess the likelihood of disclosure, unauthorized access, sensitivity of the information, safeguards to be implemented, and the pros/cons of using any call recording feature prior to its use.¹⁰ The client must evaluate the risks and make an informed decision on whether they are willing to accept the risks and potentially waive confidentiality of the information.

ACCURACY AND RELIABILITY

The accuracy of any call recording transcript is vital for ensuring that documentation reflects the true content of the attorney-client call. Inaccurate notes can lead to misunderstandings or misrepresentations or potential violations of the Rules of Professional Conduct regarding dishonesty, fraud, deceit, or misrepresentation.¹¹ Therefore, any output from a call recording feature must be carefully reviewed to ensure that the transcription is not false. This is vitally important if the call recording and transcript is relied upon by the client in deciding what to do in a legal proceeding or if the documentation becomes subject to discovery and used against the client in a legal proceeding.

To ensure accuracy, attorneys should request that any call recording and transcript be forwarded to them to thoroughly review it for accuracy. If the documentation is not accurate it should be corrected immediately.

COMMUNICATION

If you, the lawyer, want to use any call recording features yourself during a client representation, you need to remember your duties of communication under Rule 1.4.¹² A lawyer must communicate with the client on the means of the representation, including the use of AI tools such as call recordings.¹³ What type of communication is needed? Does the lawyer need to obtain written specific consent from the client?

When client consent is mandated, the consent must be informed.¹⁴ The consent has to be informed and specific to the type of AI being utilized, e.g., the call recording feature.¹⁵ Merely adding boiler-plate provisions to an engagement letter is not sufficient.¹⁶ A lawyer must disclose the following to the client, in writing: (a) the benefits of the AI tool being utilized; (b) the risk associated with the use of the AI tool; and (c) the risk of inadvertent disclosure.¹⁷

CONCLUSION

With iOS 18.1, Apple is transforming the way people manage and document their calls. By combining intuitive features, AI-driven summaries, and seamless integration with the Notes App, this update empowers people to focus on conversations while their iPhone handles the details. However, it's important to note that the transcripts can contain inaccuracies and other ethical risks to lawyers when used to record attorneyclient conversations. While the new AI features can appear to be shiny, new toys, lawyers need to remember their ethics and only utilize new AI tools in a way that comports with the Rules of Professional Conduct. This does not mean that attorneys should shy away from new AI tools. It means attorneys must be smart in our use of them and always communicate with clients if you, or they, are going to use AI tools.

Footnotes

1. The Apple call recording feature is currently available in Beta, with Siri and device language settings defaulting to U.S. English. Additional languages, features, and device compatibility are expected to roll out over the next year. Always check for Apple updates, because they are frequent, and things can change quickly.

2. This information is geared toward the Apple iPhone and its technology starting with iOS 18.1. If you are operating on iOS 18.1, then you can use this as a guide; but always check for more recent Apple updates.

3. Model Rules of Pro. Conduct R. 1.1 (Am. Bar Ass'n. 2024).

4. Id.

5. Id.

6. ABA Comm. On Ethics & Pro. Resp., Formal Op. 512 (2024).

7. Model Rules of Pro. Conduct R. 1.4 (Am. Bar Ass'n 2024) (regarding communicating with the client on the means of the representation, including the use of AI programs); ABA Comm. On Ethics & Pro. Resp., Formal Op. 512 (2024); Cari Sheehan, AI Note-Taking Tools: Best Practices And Ethical Considerations, Res Gestae (Oct. 2024).

8. Model Rules of Pro. Conduct R. 1.6 (Am. Bar Ass'n 2024); ABA Comm. On Ethics & Pro. Resp., Formal Op. 512 (2024).

9. ABA Comm. On Ethics & Pro. Resp., Formal Op. 512 (2024) (stating the same privileges are extended to former and prospective clients under Model Rules of Pro. Conduct R. 1.9(c) and 1.18(b))

10. Id.

11. Model Rules of Pro. Conduct R. 8.4(c) (Am. Bar Ass'n 2024).

12. Model Rules of Pro. Conduct R. 1.4(Am. Bar Ass'n 2024); ABA Comm. On Ethics & Pro. Resp., Formal Op. 512 (2024).

13. Id.

14. Id.

15. Id.

16. Id.

17. Id.

Originally published by ISBA's Res Gestae Member Journal, March 2025, page 31

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.