COPE: Working on updates – for you

By Holly Moose

Your Committee on Professional Ethics has been hard at work. It has completed its review and revision of Advisory Opinions 1 through 44, many of which were outdated and/or duplicative. This task was a major undertaking and spanned the terms of two consecutive COPE committees. Kudos to all who participated.

The goal was to combine opinions that were similar, update opinions that were outdated, and rescind opinions that were obsolete or where applicable state and local rules were too variable to allow for a generalized opinion. Given the pace at which technology advances, this process may have to be revisited again sooner than any of us care to reflect upon. But for now, such terms as “diskette” have been updated to reflect 21st century nomenclature and the hypotheticals updated to reflect current circumstances.

Here’s a synopsis of some of the changes:

Advisory Opinion 4 addresses altering the official record. A consensus was reached that it should not be the reporter’s responsibility to determine what constitutes a “material” change, but rather, that any change the Court wishes to make, even one of a grammatical nature, should be agreed upon by all parties before the reporter may alter the official record.

Advisory Opinions 19 and 37 addressed certification and confidentiality of transcripts. AO 37 was rescinded, and AO 19 was revised to apply the same standards regarding certification and confidentiality to electronic and paper transcripts.

Advisory Opinion 24 addresses a third party seeking to obtain transcripts, or the names and contact information of the attorneys involved, from a prior case in which the requesting party itself is not involved. A consensus was reached that the reporter should not provide transcripts, or any information contained therein, without the consent of all parties to the underlying case. It was further agreed that it should not be at the discretion of the reporter whether or not to seek such consent, but rather, that the reporter is obligated to do so, in fairness to all participants.

In addition to the revisions that were made, the Committee inserted cross-references wherever a similar opinion exists, in the event that one or the other is not quite what you’re looking for.

Your Board of Directors has been hard at work too! It dutifully reviewed each and every one of COPE’s suggested revisions and adopted them.

Consider browsing through the Advisory Opinions on NCRA’s website. You would be amazed at how many scenarios are described that you may have encountered yourself at some point in your career. It’s always interesting to see how others have handled it. Perhaps such a review will prepare you for a situation that may arise in the future and assist you in addressing it in the best possible way.

Never having studied these opinions before, but needing to do so in order to complete our task, I must say I find many of them as relevant today as the day they were adopted. Technology excepted, some things never change!

Holly Moose, RDR, CRR, of Sausalito, Calif, is an ex-officio member of NCRA’s Committee on Professional Ethics.

COPE PUBLIC ADVISORY OPINION 38: An attorney requests a copy of a reporter’s backup audio media

By Linda Larson

The Committee on Professional Ethics reviewed the following scenario: While taking down the official record, a reporter makes an audio backup recording of a proceeding for use by the reporter only while preparing the transcript. During a break in the proceeding, an attorney requests a copy of the reporter’s backup audio media. What are the obligations of the court reporter under the Code of Professional Ethics?

The committee has determined that absent a court order to do so, the NCRA Code of Professional Ethics does not require that a reporter provide a copy of any backup audio media that the reporter uses to make the official transcript of a proceeding. If a court reporter chooses to give the audio to the requesting attorney, the court reporter should be aware of Provision Number 1 and Provision Number 4.

Provision Number 1 of the Code of Professional Ethics states that a member shall be fair and impartial toward each participant in all aspects of reporting the proceedings and always offer to provide comparable services to all parties in a proceeding.

Provision Number 4 of the Code of Professional Ethics requires that the reporter preserves the confidentiality and ensures the security of the information, oral or written, entrusted to the member by any of the parties in a proceeding.

In conclusion, if the court reporter decides to provide audio to the requesting attorney, then the offer should be made to all other parties in the proceeding. The audio should be carefully screened to be sure there are no confidential discussions inadvertently picked up on the audio that would violate Provision Number 4.
Linda Larson, RPR, CRI, is a member of the NCRA COPE Committee and a freelance court reporter and owner of Premier Reporting, LLC, with offices in Carlisle and Harrisburg, Pa. Linda can be reached at linda@premierreportingllc.com.

COPE PUBLIC ADVISORY OPINION 36: Reporting a deposition where the witness is appearing by telephone

By Linda Larson

Since the quality of audio on teleconferencing and videoconferencing has improved over the years, and to save money and time, more and more attorneys are choosing to take depositions by phone or videoconference. Often the court reporter is put on the spot when arriving at a deposition and the attorneys are expecting the oath to be administered over the telephone. There are two different scenarios in this opinion.

The first scenario is one where the court reporter arrives at a deposition to find that the witness will be appearing by telephone. There is a notary with the witness who will be administering the oath. What are the obligations of the court reporter under the Code of Professional Ethics?

A reporter is always bound by federal, state, or local laws. If there are no laws, rules, or regulations regulating the above scenario, then the COPE 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. In addition to rules governing court reporters, the reporter should look to his or her notary rules or other applicable laws to determine if he or she is permitted to swear in a witness over the telephone. If not, then the witness should be sworn in by a duly authorized oath giver in the presence of the witness. The court reporter must prepare a certificate page that conforms to the circumstances under which the oath was administered. The reporter should obtain from the oath giver proper documentation of administration of oath for attachment to the transcript.

In the second scenario, there is no authorized oath giver in the presence of the witness who is over the telephone. The attorneys 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. What are the obligations of the court reporter under the Code of Professional Ethics?

Again, a court reporter is always bound by federal, state, or local laws. Attorneys cannot stipulate to breaking laws. It is a violation of provision number 9 of the Code of Professional Ethics, which is maintain the integrity of the profession, to administer the oath over the telephone if there is a law stating that the witness must be with the court reporter or oath giver when administering the oath.

In conclusion, unless notary or other laws state otherwise, the witness should be in the same room with the court reporter so the court reporter can legally administer the oath. If this is not possible, then another notary should be with the witness; the notary will administer the oath to the witness and provide documentation to the court reporter to attach to the transcript stating that the oath was legally given by the notary.
Linda Larson, RPR, CRI, is a member of the NCRA COPE Committee and a freelance court reporter and owner of Premier Reporting, LLC, with offices in Carlisle and Harrisburg, Pa. Linda can be reached at linda@premierreportingllc.com.