Advisory Opinion 6
"Off the record" must be agreed to
Statement of Facts
A reporter is engaged by the attorney representing plaintiff to report a deposition. Attorney for the defendant and the witness appear at the designated time. After completing his examination, the hiring attorney states that the deposition is concluded. The defense attorney, wishing to examine the witness, does not agree to its conclusion. The hiring attorney then directs the reporter to go off the record since he is paying for it. The reporter declines to do so and continues to report the examination of the opposing counsel.
The question presented here is: Should the reporter have complied with the hiring attorney's request not to continue reporting his opponent's examination?
The answer is an emphatic no. It makes no difference who makes the request. Unless all counsel in an examination agree to go off the record, the reporter is duty-bound to continue reporting the proceedings even when the hiring attorney makes the request of the reporter. The reporter must act impartially and professionally in all proceedings that are reported.
It is the Committee's opinion that the reporter was acting within the provisions of the Code of Professional Ethics, particularly Provisions 1 and 9, which state that the member shall:
No. 1. Be fair and impartial toward each participant in all aspects of reported proceedings.
No. 9. Maintain the integrity of the reporting profession.
THIS PUBLIC ADVISORY OPINION REFLECTS THE STATUS OF THE LAW IN MOST JURISDICTIONS. MEMBERS ARE REQUIRED TO CONFORM TO THE ACCEPTED PRACTICES SET FORTH IN THIS PUBLIC ADVISORY OPINION TO THE EXTENT THAT SUCH PRACTICES ARE CONSISTENT WITH THEIR OWN APPLICABLE STATE AND LOCAL LAWS, RULES AND REGULATIONS.