A court reporter states that the following situation exists and wonders whether it is a violation of the Rules Governing the Recording of Judicial Proceedings:

          In order to encourage the use of the court reporter's services, a certain court reporter pays $100 to a law firm's secretary for the first time the secretary schedules a deposition with that court reporter.

          The inquiring court reporter wants to know if this system of kickbacks or incentives would subject the certain reporter to discipline.

          Rule 22-605(A) NMRA 1998 provides that "unprofessional conduct" is among the grounds for disciplinary action. Unprofessional conduct is not further defined in the Rules, but Rule 22-402(B)(3) NMRA 1998 grants the Board the power to recommend to the Supreme Court additional ethical standards that are not contained in the Rules Governing the Recording of Judicial Proceedings. Pursuant to this power, the Board did, in fact, recommend, and the Supreme Court adopted, the "New Mexico Certified Court Reporter's Code of Professional Ethics." The effective date of the adoption of the Code is April 21, 1998. Among its provisions, the Code expressly states that:

          A New Mexico certified court reporter shall:...(8) refrain from giving, directly or indirectly, any gift, incentive, reward, or anything of value to attorneys, clients, or their representatives or agents, except for nominal items that do not exceed $25 per transaction and $50 in the aggregate per recipient per year.

          It is the opinion of the Board that the $100 first-time gift violates both the letter and spirit of this provision. It violates the letter of the provision because $100 exceeds both the $25-per-transaction maximum and the $50-per-year maximum. Even if the court reporter offered $25 per transaction up to a minimum of $50 per year for all deposition business the secretary would schedule with the particular reporter, it would be the Board's opinion that such an arrangement would violatethe spirit of the provision. The intent of paragraph 8 of the Code of professional Ethics is to allow reporters to thank attorneys for their business in gracious ways that do not amount to anything more than nominal gifts. Flowers, candy, fruit, mouse pads, calendars, and desk toys are the items contemplated as such nominal gifts. The offer of cash in the amount of $100 clearly exceeds what is allowable.

          Because the $100 violates the express letter of the Code, which, in turn, violates the express letter of the Rules prohibiting unprofessional conduct, a reporter who conducted business that way would be subject to discipline. Lesser incentives or kickbacks might not subject the reporter to discipline without further warning, but may result in a warning, which, if violated, would subject the reporter to discipline.

          The Code sets forth standards to which all reporters should aspire in terms of fairness and impartiality, both as regards guarding the actual record and guarding the integrity of the business of court reporting. A certified court reporter should strive to uphold the highest standards of both reporting and business practice. It is only through such actions that court reporters can proudly call themselves professionals.