Court reporters, clients, and gift giving – talking points
National Court Reporters Association has a Code of Professional Ethics for its
members to follow.
- The Code specifically states that NCRA members shall “Refrain
from giving, directly or indirectly, any gift, incentive, reward, or anything of
value to attorneys, clients, or their representatives or agents, except for
items that do not exceed $100 in the aggregate per recipient each year.” The
purpose of this provision is to avoid the possible appearance of partiality or
favoritism on the part of a reporter.
am fair and impartial to all litigants. In order to avoid the appearance of
impropriety and partiality, I follow closely NCRA’s Code of Professional Ethics.
world of court reporting is very competitive. I market my skills and the
products and services that I provide. There are no incentives to hire me other
than the excellent service you will receive from me.
am an “Ethics First” proponent. I am proud to say that I follow NCRA’s Code of
Professional Ethics and specifically as it relates to gift giving.
National Court Reporters Association has an extensive certification and
continuing education program. Hire a reporter who is certified by NCRA. Measure
the reporter you hire by their certifications and not the gifts they give.
Frequent flyer miles, gifts, discounts and rebates from third party
providersFor complete article click on the following link: http://www.abanet.org/media/youraba/201003/article11.html
By Peter Geraghty
ABA Center for Professional
You have a solo practice that concentrates in family law. A court
reporting firm has offered you discount points that can be redeemed at the end
of the year for cash refunds and other benefits. Can you keep the
ABA Formal Opinion 93-379 Billing for Professional Fees, Disbursements and
Other Expenses made the following statement about what a lawyer should do
when offered a discount from third party providers:
…In the absence of disclosure to the contrary...if a lawyer receives a
discounted rate from a third party provider, it would be improper if she did not
pass along the benefit of the discount to her client rather than charge the
client the full rate and reserve the profit to herself. Clients quite properly
could view these practices as an attempt to create additional undisclosed profit
centers when the client had been told he would be billed for disbursements.
The opinion based its reasoning on Model Rules 1.5 Fees and 1.4
Communication. It cited to subpart (b) of Rule 1.5 as it existed prior
to the ABA Ethics 2000
Commission’s changes to the rule in 2003 which stated as follows:
..When the lawyer has not regularly represented the client, the basis or
rate of the fee shall be communicated to the client, preferably in writing,
before or within a reasonable time after commencing the representation.
Note that both the black letter Rule 1.5 and comment were subsequently
amended pursuant to the ABA Ethics 2000 Commission’s recommendations in 2003,
although the substance of the two above excerpts from the rule are substantially
the same in the current version of the rule. The E2K did, however, add paragraph
1 to the comment that in part incorporates some of the reasoning of Formal
Opinion 93-379. This paragraph states:
…Reasonableness of Fee and Expenses
 Paragraph (a) requires that lawyers charge fees that are reasonable
under the circumstances. The factors specified in (1) through (8) are not
exclusive. Nor will each factor be relevant in each instance. Paragraph (a) also
requires that expenses for which the client will be charged must be reasonable.
A lawyer may seek reimbursement for the cost of services performed in-house,
such as copying, or for other expenses incurred in-house, such as telephone
charges, either by charging a reasonable amount to which the client has agreed
in advance or by charging an amount that reasonably reflects the cost incurred
by the lawyer.
Other state and local bar opinions have concluded that a client should be the
beneficiary of rebates, discounts or gifts given to her lawyer in exchange for
engaging the services of a third party on the client’s behalf unless the client
consents to the lawyer keeping the rebate or discount after full disclosure.
See, Alabama (Birmingham Bar Association) Opinion 89-83
A lawyer who receives an "award check" from the court reporter as a result
of ordering deposition transcripts that were paid for by a client may only
accept the "check," which may be used to order merchandise through the court
reporter from an exclusive merchandise catalog, after obtaining consent of the
client after full disclosure. A lawyer may not accept anything of value absent
the knowledge and consent of his client after full disclosure. - 901 Law. Man.
Prof. Conduct 1058 (1989).
The Alabama opinion cited to DR 1-102(A)(4) of the Alabama Code of
Professional Responsibility (The Model Rule corollary is subpart (c) of Rule 8.4 Misconduct)
that prohibits a lawyer from engaging in conduct involving fraud, deceit and
dishonesty for the proposition that a lawyer must be “…scrupulous in dealing
honestly and forthrightly with members of the public—and particularly with his
own clients.” See Also District of Columbia Opinion 185 (1987)
and Iowa Opinion 00-2
(2000), a digest of which states:
A lawyer may sell "probate and other similar bonds" to clients, but the
commissions, rebates, discounts, etc., belong to the client and must be
disclosed and credited to the client unless the client consents to their
distribution to the lawyer… - 1101 Law. Man. Prof. Conduct 3601.
On a related topic, See "Can a Lawyer
Accept Referral Fees or Commissions from Non-Lawyers?" which appeared in the
June 2007 issue of YourABA.
Questions involving rebates, discounts and other benefits from third party
providers can present thorny ethical issues. As always, check your state or
local bar association ethics opinions and rules of professional conduct. Your
local bar association may be also be able to help.