THE BOARD GOVERNING THE RECORDING OF JUDICIAL PROCEEDINGS
ADVISORY OPINION NUMBER 2003-1
The Board Governing the Recording of Judicial Proceedings (the “Board”) received a request for an advisory opinion relating to the provision of videotaping services. It should first be noted that the Board is empowered to regulate and license “court reporters” and “tape monitors.” Rule 22-402 NMRA 2003. The Board is not empowered to certify, license, or regulate videographers and this Advisory Opinion is intentionally limited in scope and application to factual scenarios in which a court reporter, a court monitor, or a business entity certified by the Board (collectively, the “Certified Entity” or “Certified Entities”) is providing the videography services in question.
II. Factual Background
A number of Certified Entitles have established in-house videotaping departments that offer videotaping services either in conjunction with or separate from the provision of court reporting and/or tape monitoring services. As such, the Certified Entity is directly offering videotaping services to clients rather than subcontracting this function to a separate and distinct business.
The issue raised is:
Certified Entity was hired by both Plaintiff’s Attorney and Defendant’s Attorney in a personal injury case to stenographically report and transcribe the depositions. Certified Entity also has a videotaping department. Thereafter, Plaintiff’s Attorney contacts the Certified Entity to obtain a videotape of the scene of the accident. As part of the assignment, Plaintiff’s Attorney specifically instructs Certified Entity that it is “to keep the assignment a secret from Defendant’s Attorney.”
Can Certified Entity accept the assignment?
It is clear that Certified Entity cannot accept the assignment.
Certified Entity, regardless of whether it is an individual, partnership, limited liability company, corporation, or some other legal form, must operate in compliance with the Rules Governing the Recording of Judicial Proceedings (the “Rules”) and the Code of Professional Ethics (the “Code”). Rules 22-202, 22-203(B)(4) & (C), 22-505, & 22-605(M) NMRA 2003. Therefore, the type of Certified Entity involved is irrelevant for the purposes of the issue presented.
The Certified Entity must: (A) treat all participants in a fair and impartial manner, (B) avoid impropriety or the appearance thereof, (C) avoid conflicts of interest or the appearance of such, and (D) maintain the integrity of the profession. By accepting the “secret assignment,” the Certified Entity places itself in the position of violating each.
For example, imagine the surprise of Defendant’s Attorney when the videotape taken by Certified Entity is introduced into evidence at trial. Further, imagine Certified Entity’s surprise when Plaintiff’s Attorney calls Certified Entity as a witness at trial to establish the authenticity of the videotape and to provide testimony relating to its accuracy to the detriment of the case of Defendant’s Attorney. Of course, the Complaint filed with the Board against Certified Entity by Defendant’s Attorney upon the conclusion of trial should come as no surprise to Certified Entity.
The Rules and the Code demand fairness and impartiality by a Certified Entity. A Certified Entity shall “be fair and impartial toward each participant in all aspects of reported proceedings.” Rule 22-505(1) NMRA 2003. By performing the “secret videotaping assignment” for one (1) side to the litigation, Certified Entity now raises the question of whether Certified Entity acted fairly and impartially in the mind of the other party and the public in general.
A Certified Entity shall “guard against not only the fact but the appearance of impropriety.” Rule 22-505(3) NMRA 2003. By accepting the “secret videotaping assignment,” Certified Entity raises questions as to whether Certified Entity acted with impropriety. A Certified Entity shall “be alert to situations that are conflicts of interest or that may give the appearance of a conflict of interest.“ Rule 505(2) NMRA 2003. Under the factual scenario presented in Section II of this Advisory Opinion, Certified Entity would have a conflict of interest in performing the “secret video assignment” on behalf of Plaintiff’s Attorney. It is also important to stress, that even if no actual impropriety by or conflict existed for Certified Entity in the acceptance of the “secret videotaping project,” a violation of the Rules and the Code is not dodged by Certified Entity. All that is required is the appearance of impropriety or a conflict of interest. Under the factual scenario presented in Section II of this Advisory Opinion, even were Certified Entity able to convince the Board that no actual impropriety or conflict of interest existed, Certified Entity would not be able to convince the Board that the appearance of such does not exist.
The creation of a fair and impartial record lies at the very heart of the profession in which Certified Entity has voluntarily chosen. The failure to preserve the public perception of impartiality in the creation of the record calls into question the basic fairness and impartiality of the entire judicial process. As an officer of the court, Certified Entity has taken on the duty to maintain the integrity of the court reporting profession. A Certified Entity shall “maintain the integrity of the court reporting profession.” Rule 22-505(9) NMRA 2003. By accepting the assignment described in Section 2 of this Advisory Opinion, Certified Entity creates a situation where the integrity of the court reporting profession and the judicial system is publicly questioned. A Certified Entity has an obligation to the court reporting profession and to the entire judicial system upon which justice in the State of New Mexico and the United States of America is founded to refuse to be a part of such activity.
The Rules and the Code demand strict compliance by Certified Entities. Acceptance of the assignment described in Section II of this Advisory Opinion is in clear violation of the Rules and the Code and such violation is subject to disciplinary action pursuant to Rule 22-605 NMRA 2003 and the imposition of appropriate sanctions pursuant to Rule 22-402(B)(6).
A Certified Entity that takes depositions for both sides to a dispute would violate Rules 505(1), (2) (3), (9) & (10) NMRA 2003 by later performing a “secret videotaping assignment” for only one (1) side in the same litigation.
In essence, Certified Entity is now performing litigation support services for Plaintiff’s Attorney. A Certified Entity that is considering the provision of litigation support services should also review Public Advisory Opinion 32: Preparation of Deposition Summaries issued by the National Court Reporters Association for additional guidance on this topic.
A Certified Entity shall “abide by the rules governing the recording of judicial proceedings.” Rule 22-505(10) NMRA 2003. As such, by violating any other rule, a Certified Entity also violates this rule.