Advisory Opinion 23
Preparing "off the record" comments (1995)
Statement of Facts
An attorney requested the Committee on Professional Ethics for an advisory opinion concerning the following situation. The attorney was asking a deponent certain questions. The deponent was not answering the attorney's questions upon instructions from opposing counsel. After the deposition concluded, the opposing attorney made several remarks overheard by the reporter and others indicating that the witness knew of information or documents responsive to the attorney's questions. The deposing attorney asked the reporter to go back on the record so that he could ask these questions again of the witness. The reporter did so, but the witness again declined to respond. The opposing counsel also refused to confirm the comments that he had made "off the record."
The reporter refused a request by the deposing attorney that she prepare a record of the comments made by opposing counsel "off the record" after the deposition concluded. The attorney wants to know the reporter's responsibilities in this situation.
The Committee agrees with the reporter that the reporter is not authorized to prepare a record of the comments made by opposing counsel "off the record" after the deposition concludes. Nonetheless, the reporter, like any other witness to statements and events that occur in the reporter's presence, could testify regarding these statements and events if subpoenaed by the deposing attorney pursuant to a court order.
Provision No. 1 of the Code requires the reporter to be fair and impartial to each participant in all aspects of reported proceedings. Provision No. 3 mandates that reporters guard against not only the fact but also the appearance of impropriety. Finally, Provision No. 9 requires reporters to maintain the integrity of the reporting profession. By informing the deposing attorney that the reporter is not authorized to prepare a record of the comments made by opposing counsel "off the record" after the deposition concludes, the reporter recognizes the reporter's obligations of impartiality and fairness to each of the parties to the action. If the reporter had done otherwise, the reporter would compromise the reporter's neutrality, thus creating not only the appearance, but also the fact of impropriety. Moreover, by displaying such partiality, the reporter would impugn the integrity of the reporting profession.
It is the opinion of the Committee that the reporter is not authorized to prepare a record of the comments made by opposing counsel "off-the-record" after the deposition concludes. If the reporter had prepared a record of such comments, the reporter's actions would violate Provisions Nos. 1, 3 and 9 of the Code that deal with the impartiality of the reporter, the fact and appearance of impropriety and the integrity of the reporting profession. If the deposing attorney insists on a record of the comments overheard by the reporter, the attorney should subpoena the reporter to testify regarding such comments.
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.