Advisory Opinion 40

Authorizing Others to Sign Transcripts (Originally Written, 2002; Revised, 2005)

Statement of Facts

The NCRA Board of Directors has requested an opinion from the Committee on Professional Ethics regarding ethical issues involved where the reporter has delegated to another individual the authority to sign the reporter's name on the transcript certification page.

Discussion

Provision No. 4 of the Code requires a reporter to ensure the security of the information provided to the reporter by any of the parties in the proceeding. The certification page attached by a reporter is a sworn statement by the reporter, under penalty of perjury, as to the accuracy and completeness of the transcript. Therefore, the certification page functions as the vehicle whereby the reporter acknowledges that the reporter has fulfilled the reporter's duty of ensuring that the information provided to the reporter is secure and that this information is accurately and completely reflected in the transcript.

It is the reporter's obligation and responsibility when he or she signs the certification page to assure that the record is complete and accurate. The reporter must exercise due diligence to ensure the security and integrity of the record before attaching his or her signature. Therefore, it is the reporter's duty not to sign or otherwise allow the reporter's signature to be affixed to a transcript unless he or she can be sure that the record is true and complete. This includes an obligation by the reporter to review the work of any scopist or proofreader to ensure the substance of the transcript has not been altered.

The importance of the reporter's certification and the reporter's duty to ensure the security of the record is further reflected in the Federal Rules of Civil Procedure. Rule 30(f) of the Federal Rules of Civil Procedure states: "The officer shall certify that the deposition is a true record of the testimony given by the witness. This certificate shall be in writing and accompany the record of the deposition." Further, the Federal Rules provide that "unless otherwise agreed by the parties, a deposition shall be conducted before an officer authorized to administer oaths." [F.R.C.P. Rules 28 and 30(b)(4)] In Federal court, and by extension in those states that follow the Federal Rules, a certification by someone other than the officer who took the record would be invalid.

This duty to ensure the accuracy of the information in a transcript is particularly important in states that require reporter licensure. If a reporter permits his or her signature to be affixed to a document that has been altered, his or her license may be revoked by the state. The reporter needs to assure himself or herself that the transcript is complete and accurate.

Agency owners should recognize the reporter's obligations to ensure the integrity and accuracy of the transcript and avoid putting their reporters into situations that may violate not only the Code of Professional Ethics but also federal or state law. In circumstances where an agency reformats a transcript to make the transcript conform to local standards, the agency needs to be aware of the reporter's ethical obligation to ensure the security and veracity of its contents. The agency should advise the reporter that the transcript has been reformatted. The reporter should review the reformatted transcript to verify that the content of the transcript has not been altered. A reporter who allows some other person or entity to execute or attach his or her signature to a transcript through any means without the reporter's first verifying that the content of the transcript has not been altered has failed to meet the reporter's ethical obligation to assure that the record is complete and accurate.

With the advent of recent technology, business processes have changed greatly to increase the convenience, speed and economy in producing and distributing transcripts. However, it is still the reporter's duty to preserve the integrity of his or her certification. A reporter can submit the reporter's transcript electronically for physical production by the firm provided that the reporter maintains control of the transcript. For example, a reporter who works remotely may access the agency's network online, import the reporter's ASCII file into a Word document created with the template that meets jurisdictional requirements, edit the transcript, sign the transcript with a .Tif file and print the transcript directly to the agency's printer. In this situation, the reporter has met his or her ethical obligations and responsibilities because he or she has maintained control over the integrity of the transcript and can be assured that transcript is complete and accurate when the reporter's signature is attached.

Similarly, in an era in which electronic filing and retrieval of official court documents are increasingly becoming the standard, technology may provide additional measures that protect the integrity of the content of the transcript while realizing beneficial improvements in transcript production and transmittal processes. For example, there are technology applications that allow a reporter to attach their signature directly to an electronic document through electronic means, and file that document for electronic retrieval in a format in which their signature can be authenticated. The fact that the file has not been altered after the signature was attached can be verified and documented.

It would be extremely desirable for technology companies that have electronic filing and signature products to develop a feature that would allow firms to appropriately handle (format, print, distribute, store, manage) a transcript that a reporter has submitted electronically and upon which he/she has digitally applied his/her signature, without violating the integrity of the document or the reporter's digital signature. That is, technology that allows the reporter and the ultimate recipient of the document to be sure, regardless of whatever intermediary parties have handled the production or distribution of the transcript once it was out of the reporter's hands, that the contents have not been altered.

When a reporter allows another person or entity to sign the certification page, that person or entity is "authenticating" the transcript rather than the reporter who transcribed the proceeding. In such a case, the reporter is not in a position to truthfully certify that the information contained in the transcript is accurate and complete and, therefore, secure. In such a case, the Committee believes that the delegee must indicate that he/she is certifying as to the accuracy and completeness of the transcript rather than the reporter. The court and the parties to the proceedings must have this information in order to make an informed decision as to the accuracy, completeness and validity of the transcript.

Provision No. 3 of the Code requires a reporter to guard against not only the fact but the appearance of impropriety, and Provision No. 9 requires the reporter to maintain the integrity of the reporting profession. The reporter, therefore, has an ethical obligation to disclose to the court and all parties to the proceeding that the reporter was not actually the one to certify the transcript. The certification page needs to accurately reflect who certified the transcript. Not disclosing or misrepresenting the identity of the actual signer of the transcript is a violation of Provisions 3 and 9 of the Code.

In some jurisdictions, such as Minnesota and New Mexico, the courts may determine that the transcript with the delegated signature is valid. Others such as California, Texas and Illinois, may determine that the reporter cannot designate an individual to sign the transcript on his/her behalf because it is the reporter's duty to certify that the transcript is a correct statement of the testimony.

In states that may allow the reporter to delegate his or her authority to certify the transcript, the certification page could state: "XXX, Firm Owner, for XXX Reporter." In New Mexico, for example, the managing reporter for the courts will sign a transcript for out-of-state reporters: "XXX for Reporter XXX, official transcript to follow within 10 business days."

Conclusion

Provision No. 4 of the Code requires a reporter to ensure the security of the information provided to the reporter by any of the parties in the proceeding. It is the reporter's obligation and responsibility when he or she signs the certification page to assure that the record is complete and accurate. The reporter needs to exercise due diligence to ensure the security and integrity of the record before attaching, or permitting to be attached, his or her signature.

The reporter should not sign or otherwise allow his or her signature to be affixed to a transcript unless he or she can be sure that the record is complete and accurate. This includes a responsibility of the reporter to review the work of any scopist or proofreader to ensure the substance of the transcript has not been altered.

When a reporter allows another person or entity to sign the certification page, that person or entity is "authenticating" the transcript rather than the reporter who transcribed the proceeding. In such a case, the Committee believes that the delegee must indicate that he or she is certifying the transcript rather than the reporter. If the reporter fails to disclose to the court and all parties to the proceeding that the reporter was not actually the one to certify the transcript, the reporter would be in violation of Provision Nos. 3 and 9 of the Code.

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.