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Advisory Opinions

Advisory Opinion 36

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Reporting a deposition where the witness is appearing by telephone   (1999; revised 2014)

Statement of Facts

A Member has requested an opinion from the Committee on Professional Ethics regarding the following scenario: a reporter arrives to report a deposition where the witness is appearing by telephone. Although the reporter is not in the presence of the witness, there is a notary in the presence of the witness to administer the oath. What are the obligations of the reporter in this situation under the Code of Professional Ethics?

The Committee's opinion also addresses a related issue involving the reporter's obligations under the Code of Professional Ethics if there is no duly authorized oathgiver in the presence of the witness. The attorneys involved wish to waive the notarial requirement and stipulate that the oath given by the reporter, not in the presence of the witness, has the same force and effect as if administered in the presence of the witness.

Discussion

The Committee notes that the first scenario may be governed by the applicable federal, state or local laws, rules, regulations or case law. A reporter is bound by these applicable laws, rules, regulations or cases. If there are no applicable laws, rules, regulations or case law addressing the reporter's obligations under this first scenario, the Committee believes there is no ethical violation for a reporter who is not in the presence of a witness appearing over the telephone to report the deposition of such witness when the witness has been sworn in by a duly authorized oathgiver in the presence of the witness.

Under these circumstances, the reporter taking the deposition does not have the usual obligations involved in administering the oath. Provision No. 5 of the Code of Professional Ethics requires the reporter to be truthful and accurate when making public statements. Therefore, the reporter must prepare a certificate page which conforms to the circumstances under which the oath was administered. The reporter should obtain from the oathgiver proper documentation of administration of oath for attachment to the transcript.

Provision No. 9 of the Code requires the reporter to maintain the integrity of the reporting profession. In the second situation, the reporter arrives at a telephone deposition where the witness is not in the presence of a duly authorized oathgiver. Thus, there is no duly authorized oathgiver with the witness to administer the oath in person. The attorneys wish to waive the notarial requirement and stipulate that the oath given over the telephone has the same effect as if administered in the presence of the reporter. The Committee again believes that applicable federal, state or local laws, rules, regulations or case law may determine whether such a stipulation and waiver are permissible. On the other hand, if applicable federal, state laws, rules, regulations or case law are silent on the permissibility of such a stipulation and waiver, but nonetheless, require the administering of an oath in person by an oathgiver, it would be a violation of Provision No. 9 of the Code for a reporter to agree to such a stipulation and waiver. A reporter is not maintaining the integrity of the reporting profession by allowing the attorneys for the parties to waive the duties and obligations that the reporter is bound to follow by law. The parties cannot stipulate away the reporter's legally-imposed duties and obligations. Permitting such a practice undermines the professionalism of the reporter and constitutes a violation of Provision No. 9 of the Code.

Conclusion

Provision No. 9 of the Code of Professional Ethics requires the reporter maintain the integrity of the reporting profession. In the absence of applicable federal, state or local law addressing the permissibility of a stipulation and waiver, the Committee determined that if applicable federal, state laws, rules, regulations or case law require the administering of an oath in person, it would be a violation of the Code for a reporter to agree to a stipulation that an oath administered to a witness over the telephone has the same force and effect as one administered in person.

To report a deposition where the witness appears by phone is not a violation of the Code if the oath is administered by a duly authorized oathgiver in the presence of the witness. In addition, in order to comply with Provision No. 5 of the Code which requires reporters to be truthful and accurate when making public statements, a reporter must prepare a certificate page which conforms to the circumstances under which the oath was administered. The reporter should obtain from the oathgiver proper documentation of administration of oath for attachment to 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.