Board Governing the Recording of Judicial Proceedings
Advisory Opinion No. 2013-1
The New Mexico Board Governing the Recording of Judicial Proceedings (“Board”) has been asked to issue an opinion concerning Rule 22-605(K) NMRA, commonly referred to as its “anti-contracting rule.” Since the New Mexico Supreme Court adopted the anti-contracting rule in 1996, the Board has addressed numerous questions regarding its application. The issue currently before the Board is whether it is a violation of the anti-contracting rule for a certified court reporter to agree to an insurance company’s fixed-rate fee schedule for court reporting services. As the Board understands the factual scenario, an insurance company provides its attorneys with a “Court Reporting Service Fee Schedule,” wherein the insurance company sets the rates it will pay for court reporting services. The fee schedule also details the use of purchase orders and invoicing. The insurance company’s attorneys then provide the fee schedule to court reporters when procuring their services. In order to accept work from the insurance company’s attorneys, the court reporter must agree to the fee schedule. As explained more fully below, the Board considers a court reporter’s acceptance of such an arrangement a violation of its anti- contracting rule.
The anti-contracting rule provides, in relevant part, that it is a violation for a court reporter to
enter into any agreement with . . . any insurance company [or] any attorney representing an insurance company . . . which may be viewed as allowing the . . . company or attorney to assume the right to control or direct the time, manner or method of executing deposition services, including staffing, marketing, billing, fees, record retention, billing invoice formats or any other practice that has the appearance of impropriety or appears to allow someone else to control or direct the certified court reporter’s or firm’s work.
Rule 22-605(K) NMRA (emphasis added). In requiring the use of its fixed fee schedule, the insurance company is unilaterally setting the fees for a court reporter’s services and also asserting control over billing. Thus, in acquiescing, a court reporter would be entering into an agreement with the insurance company (or its attorneys) which may be viewed as allowing the insurance company to assume the right to control or direct the time, manner or method of executing deposition services, particularly billing and fees. Aside from this overt violation of the anti-contracting rule, the practice of permitting a third-party to set fees calls into question other rule provisions.
Another portion of the anti-contracting rule provides that it is a violation for a court reporter to “fail to provide comparable services, in both quality and price, to all parties in any given action . . . .” Id. It can be inferred that if a court reporter accepts the insurance company’s fee schedule, the schedule would only apply to the insurance company. Indeed, the fee schedule itself provides that “[o]rders from jobs scheduled by opposing counsel do not require [purchase orders], and the above fee schedule does not apply to such orders.” If a court reporter accepted the insurance company’s fee schedule but continued to charge its customary fees to any other party to the proceeding, the court reporter would not be providing comparable prices, in violation of this provision of the anti-contracting rule.
Finally, the New Mexico Certified Court Reporter’s Code of Professional Ethics provides that a “certified court reporter shall . . . determine fees independently, except when established by statute or court order . . . .” Rule 22-505 NMRA. Again, the insurance company sets the fee schedule and a court reporter is required to accept it in order to provide services to the insurance company or its attorneys. The fee schedule itself provides that court reporters must “bill at the above rates or better.” Thus, in agreeing to an insurance company’s fixed fee schedule, a court reporter is not independently determining fees, in violation of ethical rules.
In conclusion, acceptance of an insurance company’s fixed fee schedule violates both the anti-contracting rule and ethical rules applicable to court reporters. It permits the insurance company to determine fees instead of the court reporter and may be viewed as allowing the insurance company to assume the right to control or direct the manner of executing deposition services. It also may implicate the provision of the anti-contracting rule that prohibits court reporters from providing comparable services to all parties in any given action. The purpose of the anti-contracting rule “is to protect the integrity of the record and to avoid the appearance of partiality.” Rule 22-605(K). Maintaining independence and control over court reporting services, including pricing, and ensuring that all parties receive the same services for the same price are critical to protecting the integrity of the record and avoiding the appearance of partiality.