Board Governing the Recording of Judicial Proceedings
Advisory Opinion No. 1997-5
Statement of Facts
A reporter's spouse or significant other is a member of a law firm that employs the reporter for a deposition. Because the examination will be conducted by the spouse or significant other, the reporter refrains from reporting the deposition but requests another reporter from the reporter's firm to cover it, from whom a percentage commission is to be received. When other members of the spouse's law firm conduct examinations, the reporter spouse takes them.
Is it a violation of the Code of Professional Ethics (1) for the reporter to assign another reporter and retain a commission therefor, and (2) for the reporter to accept assignments for depositions conducted by other members of the spouse's or significant other's law firm?
Reporters may agree to any financial arrangements that do not violate any court or governmental regulations, especially antitrust regulations. In the case cited above, the retention of a commission is permissible.
With respect to the facts cited above, the reporter was acting prudently in the first instance by requesting another reporter to cover the deposition. But if there are financial relationships between the reporters, that should be disclosed. Should the reporter decide to attend the deposition personally, then that reporter, and all reporters in like circumstances who are related in any way to the attorney conducting the examination, must disclose the relationship prior to the commencement of the examination. Otherwise, objection to the use of the deposition could be raised at the time of the trial. If the deponent reads, corrects if necessary, and signs the deposition, such objection would not lie. Since the reporter frequently does not know until the conclusion of the deposition whether reading and signing will be waived, the reporter must make disclosure at the start of the examination. Upon such disclosure, should all parties waive objection to the use of the reporter, there would be no violation of the Code of Professional Ethics.
It is the Board's opinion that, with disclosure as explained below, the assignment of another reporter to take a deposition that is being conducted by the first reporter's spouse, and the acceptance of a commission therefor, does not violate any provision of the Code of Professional Ethics.
It is also the opinion of the Board that for a reporter to take depositions conducted by other members of the spouse's or significant other's law firm would be in violation of Provisions 1 and 3 of the Code of Professional Ethics unless (1) full disclosure of the relationship is made to all parties in advance of the commencement of the deposition, (2) agreement is reached by all counsel on the record that there is no objection to the reporter's taking the deposition, and (3) the reporter's certificate is amended to set forth these facts.
The pertinent provisions of the Code state that the member shall:
No. 1 Be fair and impartial toward each participant in all aspects of reported proceedings.
No. 3 Guard against not only the fact but the appearance of impropriety.