Advisory Opinion 37
Ethics Issues Involved in the Electronic Transmission of the Written Record of a Proceeding (2000)
Statement of Facts
A freelance court reporter has requested an opinion from the Committee on Professional Ethics regarding ethics issues involved in the electronic transmission of the written record of a proceeding.
There are a number of scenarios in which the reporter may transmit the written record of a proceeding by e-mail. These include, but are not limited to, (1) a reporter sending the record by e-mail to a court reporting agency; and (2) a reporter sending the record by e-mail directly to a party or a party's attorney. In each of these scenarios, the most important consideration is for the reporter to ensure the confidentiality and security of the information contained in the written record that is electronically transmitted. This is based upon Provision No. 4 of the Code of Professional Ethics which requires that the reporter "preserve the confidentiality and ensure the security of the information, oral or written, entrusted to the Member by any of the parties in a proceeding."
There are many ways a written record may be electronically transmitted so that the confidentiality and security of the information contained therein is secure. It is not possible to discuss all of the available methods in one advisory opinion and it is not the intent of the Committee to discourage the use of new technology that accomplishes the same goals.
It is the opinion of the Committee that authentication through encryption and/or electronic or digital technology used to verify the integrity of a transmission where, if data are changed, such changes can be detected and/or invalidated, would comply with the requirements of Provision No. 4 of the Code. However, in the absence of such technology, the Committee suggests the following method for a reporter to use when e-mailing written records of proceedings.
First, after the record is electronically transmitted, the reporter follows the electronic transmission with a hard copy of the record and the original, signed certification page. The Committee recommends that the signed certificate page be sequentially paginated with the rest of the record so that it may not be attached to a different, adulterated version of the record.
Second, the Committee believes that on the certification page of the e-mail transcript, the reporter should conspicuously display a disclaimer where the reporter's signature would normally appear. A suggested disclaimer would provide:
This is an uncertified electronic transmission of the record of the foregoing proceedings. Only a hard copy with the reporter's original signature page constitutes a certified record.
The third step involves the reporter's archiving of the electronic transmission.
The reporter should never provide others with blank certificate pages signed by the reporter for attachment to the hard copy of an electronically transmitted record. The Committee believes that such a practice violates Provisions 3, 4, 5 and 9 of the Code. Provision No. 3 of the Code requires a reporter to guard against not only the fact but also the appearance of impropriety. Provision No. 4 requires a reporter to ensure the confidentiality and the security of the information entrusted to the reporter. Provision No. 5 mandates that a reporter be truthful and accurate when making public statements. Provision No. 9 requires members to maintain the integrity of the reporting profession.
As the Committee discussed in Public Advisory Opinions Nos. 19 and 34, the public and the legal community must have absolute faith in the reporter's certification that the record is true and accurate. No act could undermine the profession more than false certification of a record. When a reporter submits a written record of a proceeding by e-mail or in any other manner and knowingly allows someone to attach a presigned, generic certificate not specifically prepared for that record, the reporter is abdicating all of the responsibilities mandated by the Code of Professional Ethics.
Finally, as with all services offered by a reporter to a party to a proceeding, Provision No. 1 of the Code requires that the reporter offer comparable services to all parties to a proceeding. Therefore, if a reporter e-mails a transcript to one party, the reporter must offer to do so to all parties to the proceeding.
The Committee on Professional Ethics has determined that a reporter may electronically transmit the written record of a proceeding if proper procedures are employed to ensure that the confidentiality and the security of the information transmitted are maintained. The Committee has suggested a process to do so; however, Members are not prohibited from using other methods provided that appropriate safeguards are used to ensure confidentiality and security of the transmitted information.
In addition, the Committee has determined that for a reporter to provide others with blank, signed certificate pages for attachment to the hard copies of electronically transmitted records is a violation of Provisions Nos. 3, 4, 5, and 9 of the Code of Professional Ethics that deal with avoiding the fact and appearance of impropriety, ensuring the confidentiality of the information, making truthful and accurate public statements, and maintaining 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.