I. Introduction

          The Board Governing the Recording of Judicial Proceedings (the “Board”) received a request for an advisory opinion relating to the provision of court reporting services by a court reporter to an attorney with which the court reporter has a landlord- tenant relationship. The Board is empowered to regulate and license “certified court reporters.” Rule 22-402(B) NMRA 2004. The Board is not empowered to regulate or license attorneys and this Advisory Opinion does not discuss, is not intended to discuss, and does not consider whether an attorney would violate of the Rules of Professional Conduct under the fact patterns discussed herein. See Rule 16-101, et seq. NMRA 2004.

II. Factual Background

          It is not uncommon for a certified court reporter or a certified court reporting firm to lease or sublease office space to or from an attorney or a law firm. Often, the attorney or law firm will wish to use the services of the certified court reporter or the certified court reporting firm to whom or from whom the attorney leases or subleases space as a matter of convenience. This practice raises two (2) questions for consideration:

1. Does a certified court reporter or a certified court reporting firm violate the Rules Governing the Recording of Judicial Proceedings by accepting a job to take a deposition from an attorney or law firm to whom the certified court reporter or certified court reporting firm leases office space?

2. Does a certified court reporter or a certified court reporting firm violate the Rules Governing the Recording of Judicial Proceedings by accepting a job to take a deposition from an attorney or law firm from whom the certified court reporter or certified court reporting firm leases office space?

          Under each factual scenario, the certified court reporter or certified court reporting firm provides the deposition at the same rate charged to other attorneys or law firms and provides the same services as provided to other attorneys or law firms. The sole distinguishing fact in the scenarios presented is that a lease or sublease exists between the certified court reporter or certified court reporting firm and the attorney or law firm. 

III. Discussion

The analysis of the questions raised does not turn upon whether the certified court reporter or certified court reporting firm is the landlord or the tenant of the attorney or law firm. The analysis and outcome are the same in both cases. Therefore, this advisory opinion will not discuss the questions presented independently of or separately from each other.

The issue of whether a certified court reporter is permitted to accept a job for the member of that law firm by blood or marriage has previously been addressed by the National court Reporters Association and this board. Further, the National court Reporters Association and this Board have addressed the issue of whether a certified court reporter or a certified court monitor is permitted to take the record in proceedings in which an attorney to the proceeding is related by blood or marriage to the certified court reporter or certified court monitor. In each case, the ethical concerns discussed are the same.

A New Mexico certified court reporter shall:

1. Be fair and impartial toward each participant in all aspects of reported proceedings.

2. Be alert to situations that are conflicts of interest or that may give the appearance of a conflict of interest. If a conflict or potential conflict arises, the CCR shall disclose that conflict or potential conflict.

3. Guard against not only the fact but the appearance of impropriety.

______________________________

1See Code of Professional Ethics Public Advisory Opinion No. 3, National Court

Reporters Association (1998).

2See Advisory Opinion No. 1997-5, Board Governing the Recording of Judicial

Proceedings (1997).

Reporters Association (1998).

3See Code of Professional Ethics Public Advisory Opinion No. 2, National Court

4See Advisory Opinion No. 1999-1, Board Governing the Recording of Judicial

Proceedings (1999).

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PAGE 2 OF 59. Maintain the integrity of the court reporting

profession. . . .

Rule 22-505 NMRA 2004.5 The National Court Reporters Association and the Board

determined that acceptance of the job by the certified court reporter or certified court

reporting firm and assignment of the job to a certified court reporter that had no

relationship with the attorney or an attorney with the law firm to perform the work was

appropriate and would not violate their respective codes of ethics.6 It is important to

note that, by following this course of action, the fact that the certified court reporter, who

had a relationship, by blood or marriage, with an attorney or an attorney with a law firm

retaining the services of the certified court reporter or certified court reporting firm,

would receive financial benefit from the job had no bearing on whether the acceptance

of the job would violate the code of ethics.7

Both the National Court Reporters Association and the Board, however, opined

that acceptance of the job would violate their respective codes of ethics were a certified

court reporter, who was related by blood or marriage to an attorney or to an attorney in

the law firm, to perform the work required unless: (1) full disclosure of the relationship is

made to all parties in advance of the deposition; (2) agreement is reached by all counsel

that there is no objection to the certified court reporter taking the deposition and such

agreement is on the record; and (3) the certified court reporter’s certificate is

appropriately amended.8

The advisory opinions discussed above deal with situations where a relationship

by blood or marriage exists. The subject matter of this advisory opinion deals with

situations where a business relationship, i.e. a landlord-tenant relationship, exists. In

both situations, the applicable portions of the code of ethics implicated are identical.

5The Code of Professional Ethics 1, 2, 3, and 9, promulgated by the National

Court Reporters Association are substantially the same as Rule 22-505(1), (2), (3), and

(9) NMRA 2004.

6In fact, both the National Court Reporters Association and the Board made it

clear that following this course of action was the most “prudent” course of action in the

acceptance and performance of the job. See Code of Professional Ethics Public

Advisory Opinion No. 3, National Court Reporters Association (1998) and Advisory

Opinion No. 1997-5, Board Governing the Recording of Judicial Proceedings (1997).

7“[T]he reporter was acting prudently by requesting another reporter to cover the

proceeding, and the retention of a commission was permissible.” Code of Professional

Ethics Public Advisory Opinion No. 3, National Court Reporters Association (1998). The

Board reached the same conclusion in Advisory Opinion No. 1997-5, Board Governing

the Recording of Judicial Proceedings (1997).

8It must be kept in mind that the factual scenarios under consideration specifically

excluded jobs involving an attorney who was the spouse of a certified court reporter.

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PAGE 3 OF 5Therefore, the same analysis is used to determine whether acceptance of job by a

certified court reporter or a certified court reporting firm from an attorney or law firm with

which the certified court reporter or certified court reporting firm holds a landlord-tenant

relationship violates the Rules Governing the Recording of Judicial Proceedings.

A certified court reporter or certified court reporting firm may accept a job from an

attorney or a law firm with which it holds a landlord-tenant relationship. In such cases,

the certified court reporter or certified court reporting firm is well-advised to subcontract

or assign a certified court reporter who has no financial interest in the certified court

reporter or certified court reporting firm that is a party to the landlord-tenant relationship

shared with the employing attorney or law firm. Where such course of action is

followed, there is no violation of Rules 22-505(1), (2), (3), or (9) NMRA 2004. Also, no

violation of Rules 22-505(1), (2), (3), or (9) NMRA 2004 occurs solely because the

certified court reporter or certified court reporting firm holding the landlord-tenant

relationship with the attorney or law firm realizes financial benefit from the job.

It is not advisable for a certified court reporter or the persons having a financial

interest in a certified court reporting firm to personally perform a job received from an

attorney or a law firm with whom the certified court reporter or the certified court

reporting firm holds a landlord-tenant relationship. The potential problems of doing so

go far beyond the Rules Governing the Recording of Judicial Proceedings.9 A certified

court reporter or a person having a financial interest in a certified court reporting firm

violates Rules 22-505(1), (2), (3), and (9) NMRA 2004 by personally performing the job

received from an attorney or a law firm with whom the certified court reporter or the

certified court reporting firm hold a landlord-tenant relationship unless the certified court

reporter performing the job:

1. Fully discloses the relationship prior to the commencement of the job;

2. Obtains the agreement of all counsel and pro se parties, on the record prior to

the commencement of the deposition, that there is no objection to the certified court

reporter performing the job; and

3. Amends the certified court reporter’s certificate to set forth the applicable

facts.

If a certified court reporter or the persons having a financial interest in a certified court

reporting firm personally perform the job received from an attorney or a law firm with

whom the certified court reporter or the certified court reporting firm hold a landlord-

9See, e.g., Advisory Opinion No. 1999-1, Board Governing the Recording of

Judicial Proceedings (1999) (acknowledging possibility of creating an unnecessary

basis for appeal where a certified court reporter or certified court monitor holding a

relationship by blood or marriage takes the record in an criminal proceeding).

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PAGE 4 OF 5tenant relationship without following these steps, then the certified court reporter and

the certified court reporting firm are in violation of Rules 22-505(1), (2), (3), and (9)

NMRA 2004 and are subject to discipline.

IV. Conclusion

It is the opinion of the Board that a certified court reporter or certified court

reporting firm may accept a job from an attorney or a law firm with whom a landlord-

tenant relationship exists and may realize financial benefit from the job without violating

Rules 22-505(1), (2), (3), or (9) NMRA 2004.

It is also the opinion of the Board that a certified court reporter or certified court

reporting firm may accept a job from an attorney or a law firm with whom a landlord-

tenant relationship exists and subcontract or assign the job to a certified court reporter

that has no financial interest in the certified court reporter or certified court reporting firm

that is a party to the landlord-tenant relationship shared with the attorney or law firm

without violating Rules 22-505(1), (2), (3), or (9) NMRA 2004.

It is the further opinion of the Board that a certified court reporter or certified court

reporting firm who accepts a job from an attorney or a law firm with whom a landlord-

tenant relationship exists violates Rules 22-505(1), (2), (3), and (9) NMRA 2004 where

the certified court reporter or a member of the certified court reporting firm having a

financial interest therein performs the job, unless the certified court reporter performing

the job:

1. Fully discloses the relationship prior to the commencement of the job;

2. Obtains the agreement of all counsel and pro se parties, on the record prior to

the commencement of the deposition, that there is no objection to the certified court

reporter performing the job; and

3. Amends the certified court reporter’s certificate to set forth the applicable

facts.

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