Board Governing the Recording of Judicial Proceedings
Advisory Opinion No. 1997-2
A court reporter has asked for an advisory opinion on serval issues relating to the Supreme Court's recent adoption of a rule prohibiting contracting. The rule is Rule 22-605(K), NMRA 1996.
The reporter first asks whether the rule prohibits oral contracts in addition to written contracts. The answer is that both oral and written contracts are prohibited. Except in certain instances, an oral contract is just as legally binding as a written contract, and it was the Board's intent to include all contracts or agreements of any nature whatsoever in the prohibition on contracting. There is nothing in the language that would suggest that only written contracts are prohibited.
The reporter next asks whether reporters may agree to a per-page rate in one particular pending case. The answer is yes. T he language of the rule does not apply to a single pending case. The reporter then wants to know whether reporters may simply agree in future cases to Athe same deal as before. The answer to this question is it depends.
The Board expects reporters to act professionally and honestly at all times. This means that reporters should not, with a wink and a nod and fingers crossed behind their backs, say that the deal applies only to the pending case, while fully anticipating that the client will expect the same deal in the future and while fully intending to abide by the same agreement in the future.
The Board expects reporters to act in good faith and to abide by the spirit of the rule. If the deal is such that a court would find an implied contract even though there is no explicit contract, then the Board would likely find the reporter in violation of Rule 22-605(K). In any event, repetitive individual agreements that appear to violate Rule 22-605(K) will be scrutinized carefully.
The reporter next asks about contracting for reporting for quasi-governmental agencies and private agencies when those private agencies have proceedings that may result in litigation in the future. Insofar as purely private agencies are concerned, we do not believe that Rule 22-605(K) even applies. The exception for non-litigation matters would apply here. Thus, for example, if a family wants a verbatim transcript of its dinner conversation or if a church wants a verbatim transcript of sermons, the rule simply does not apply. Reporters are free to contract on these matters at will.
As to quasi-governmental agencies, an issue of law may be raised insofar as whether the transcript taken should be considered admissible in legal proceedings. As explained in Advisory Opinion Number 1997-3, the Board believes that a functional capacity test is appropriate for governmental entities. The opening words of Rule 22-605(K) reveal that the important purpose of the rule is to protect the integrity of the record. What this means is that court reporters taking records should not appear to be partisans.
Therefore, as far as the Board is concerned, reporters may contract with quasi-governmental entities to provide records for those entities if the entities are acting in an adjudicative, legislative, or administrative capacity. The reporters may also contract with private parties to take records before those entities, but the records in such cases may not be considered official because the reporter is considered an employee or contractor of the party. If the reporter is on contract to a party and is taking the record with the intent that it be considered official, then Rule 22-605(K) would appear to be violated.
The reporter finally asks when particular matters would be considered pending. We believe that several examples will best answer this question. If the reporter has contracted to provide transcription of church sermons and at some later date the minister is fired and institutes litigation, there was no pending or likely-to-be pending matter at the time of the contract, and the rule would not be violated. If the reporter is on contract to a partisan in litigation, even if a matter is not pending on the particular subject of the reporting, but if the reporter and partisan intend that the reporter's work product be used in litigation when instituted and intend that it be instituted, then it would appear that the rule would be violated. In such a case, the reporter would appear to be trying to do exactly what the rule prohibits, which is representing to make a true and impartial transcript while at the same time being on contract to one whose interest may not be in the truth and impartiality of the transcript.