Advisory Opinion 33

Rights of a court reporting agency when a reporter is unable, unavailable or refuses to prepare a transcript in a timely fashion (1998)

Statement of Facts

A freelance agency owner has requested an opinion from the Committee on Professional Ethics concerning the following situation. A client requested an expedited transcript of a deposition. The independent contractor who reported the proceeding was in the hospital recuperating from surgery and therefore unable to prepare the transcript. The agency owner requested a copy of the notes and/or a computer disk so the agency could prepare an uncertified copy for the client. The reporter refused. The agency owner requests the Committee for a clarification of the rights of the agency and the obligations of the reporter when the reporter is unavailable to prepare the transcript due to vacation or illness.

Discussion

The Committee considered a related situation in Public Advisory Opinion No. 10. As the Committee stated in that Opinion, the best practice is for the reporter taking the proceeding to transcribe it and, in fact, there is an implied responsibility that the reporter do so. This is a responsibility, not an absolute right. The harder issue is how to balance the needs of the client and the client's expectation that the agency will meet those needs with the principle that it is best for the reporter taking the proceeding to transcribe it.

Both the agency owner and the reporter have an obligation under Provision No. 9 of the Code of Professional Ethics to maintain the integrity of the profession. Because the best practice is for the taking reporter to prepare the transcript, the firm must give the reporter the opportunity to prepare the transcript. The reporter should then make every effort to do so in a timely fashion. When the reporter is unable, unavailable, or refuses to do the work in a timely fashion, the firm may do what is necessary to ensure that the needs of the parties to the proceeding are met.

Provision No. 5 of the Code of Professional Ethics requires the reporter to be truthful and accurate when making public statements. Therefore, the firm must prepare an appropriate certificate disclosing the circumstances under which the transcript was produced.

The question of whose obligation it is to transcribe a deposition after the reporter changes employment is best addressed in employment agreements and professional contracts before such problems arise.

Conclusion

The Committee has determined that Provision No. 9 of the Code of Professional Ethics requires both the agency and the reporter to put the needs of the parties to the proceeding over any other concerns. Because the best practice is for the reporter taking the proceeding to prepare the transcript, the firm must give the reporter the opportunity to do so. The reporter must then make every effort to transcribe the proceeding in a timely fashion. When a reporter is unable, unavailable, or refuses to do the work in a timely fashion, the firm may do what is necessary to ensure that the needs of the parties to the proceeding are met. In the situation described above, if the reporter refuses to give a copy of the notes to the agency knowing that the parties will be harmed by the delay in the transcription, this would be considered a violation of the Code.

Provision No. 5 requires the firm to prepare an appropriate certificate disclosing the circumstances under which the transcript was prepared if someone other than the reporter who reported the proceeding produces the transcript.

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.