Our office is open 8:30 – 5:00 Monday through Friday. Telephones are monitored after hours, so please leave a message or email us at depos@mbreporting.com.

Office: 111 Deerwood Road, Suite 200 San Ramon, CA 94583 office: (925) 989-6080 fax: (925) 264-1957

Document Depository: 7950 Dublin Boulevard, Suite 306 Dublin, CA 94568. To view documents, please contact us to make an appointment.

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An open letter by Deposition Reporters Association President Lisa Michaels to Governor Arnold Schwarzenegger who is 100% misguided and plain wrong about the viability of California Court Reporters.

Our office is open 8:30 – 5:00 Monday through Friday. Telephones are monitored after hours, so please leave a message or email us at depos@mbreporting.com.

Office: 111 Deerwood Road, Suite 200 San Ramon, CA 94583 office: (925) 989-6080 fax: (925) 264-1957

Document Depository: 7950 Dublin Boulevard, Suite 306 Dublin, CA 94568. To view documents, please contact us to make an appointment.

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Our office is open 8:30 – 5:00 Monday through Friday. Telephones are monitored after hours, so please leave a message or email us at depos@mbreporting.com.

Office: 111 Deerwood Road, Suite 200 San Ramon, CA 94583 office: (925) 989-6080 fax: (925) 264-1957

Document Depository: 7950 Dublin Boulevard, Suite 306 Dublin, CA 94568. To view documents, please contact us to make an appointment.

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By Peter Geraghty
Director, ETHICSearch
ABA Center for Professional Responsibility

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 benefits?

You also use a credit card for your practice that generates frequent flyer miles for every purchase you make. Do you have an obligation to inform your clients that you are receiving miles when you make purchases on their behalf? Must these miles be allocated to your clients?

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.

The opinion also cited to paragraph 1 of the Comment to Rule 1.5 that stated:

In a new client-lawyer relationship … an understanding as to the fee should be promptly established. It is not necessary to recite all the factors that underlie the basis of the fee, but only those that are directly involved in its computation. It is sufficient, for example, to state that the basic rate is an hourly charge or a fixed amount or an estimated amount, or to identify the factors that may be taken into account in finally fixing the fee. When developments occur during the representation that render an earlier estimate substantially inaccurate, a revised estimate should be provided to the client. A written statement concerning the fee reduces the possibility of misunderstanding. Furnishing the client with a simple memorandum or a copy of the lawyer’s customary fee schedule is sufficient if the basis or rate of the fee is set forth.

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:

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…Reasonableness of Fee and Expenses

[1] 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.

Alaska State Bar Ethics Opinion 95-4 took issue with ABA Formal Opinion 93-379’s position that a lawyer could keep the benefits of a discount so long as the lawyer obtained client consent after full disclosure:

A lawyer who obtains a discounted airline ticket or hotel room should not charge the client the cost for the undiscounted fare or room. The benefits of any discount must be passed on to the client. [FN2]…

FN2. ABA Formal Opinion 93-379 seems to imply that surcharges can be added on to discounted third party services so long as they are disclosed. Opinion 93- 379 at 9. The Committee declines to adopt such a standard for Alaska. Given the lawyer’s overriding obligation to treat clients fairly and reasonably, we can see no justification for not passing the benefits of discounts on to clients. – Alaska Bar Opinion 95-4 (1995).

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 (1989):

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.

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Frequent flyer miles

How a lawyer should deal with frequent flyer miles present issues that are more complicated than discounts and rebates. Two ethics opinions, from the Massachusetts and Boston bars, have dealt specifically with frequent flyer miles. Both opinions addressed the same hypothetical and came to slightly different conclusions.

Boston Bar Association Opinion 93-4 (1993) stated that in most situations, a lawyer need not disclose that he receives frequent flyer miles to his clients provided that he did not purchase a ticket that was more expensive solely to obtain miles. The opinion also noted that the fact that credit card purchases often result in miles that accrue to the credit card holder is generally known to the public and that therefore no disclosure is necessary. The opinion also noted that it would be difficult to properly credit each client for the miles, since the lawyer would accumulate the miles over a long period of time and for many different clients, the miles are typically not transferable to anyone other than family members and the amount of miles to be gained for any one transaction is generally nominal in value. The opinion did indicate, however, that if the lawyer were to use his frequent flyer miles to purchase a ticket to travel on behalf of a particular client, he should disclose it to the client so that the client can decide if she wants to reimburse the lawyer for the use of his miles. The opinion also noted that in the event that the lawyer does a great deal of travel on behalf of a particular client, the lawyer should “either use the credit for the benefit of the client, if practical, or discuss the matter with the client.”

Massachusetts Bar Opinion 94-1 stated that the lawyer must disclose the fact that he receives the credits if it is more that a “de minimis” value. The opinion suggested that in the event that the lawyer makes significant purchases or travels frequently on behalf of a client that would result in a significant amount of miles, the lawyer should disclose this to the client and give the client the option of purchasing the tickets himself.  The opinion stated:

The variety of different situations which might give rise to an economic benefit for the lawyer make it impossible to formulate a hard and fast rule as to when the benefit must be disclosed to the client. Consistent with the provisions of DR 2-106(B) and DR 5-107(A)(2), the committee’s view is that, assuming that there is no additional cost to the client in procuring the service which carries with it a benefit, the requirement of disclosure to the client depends on two factors. First, is the benefit of more than de minimis value and one which could be claimed by the client? If so, the client should be advised of the availability of the benefit. For example, in those cases where the air travel in a given case is more than de minimis and a client could obtain frequent flyer miles by paying for the travel directly, the lawyer should discuss with the client whether he wishes to pay directly and thereby obtain the benefit for himself. Similarly, where travel for an individual client is of such magnitude that sufficient frequent flyer miles are accumulated to purchase tickets which could be used for additional travel on that client’s behalf, the issue should be discussed with the client. Second, is the benefit, while not available to the client, of such significant value as to have a potential to influence the attorney’s selection of the service provider? In that case, the existence of the benefit should be disclosed to the client. Disclosure will ensure that the client is able to inform himself as to the reasonableness of the expense. It will also avoid any appearance that the attorney’s selection of the service provider was not based solely on the needs of the client, but was influenced by the availability of the benefit.

The opinion also stated that the lawyer must disclose the fact that he is receiving miles if the lawyer begins to make purchasing decisions based upon the credit or benefit he may potentially receive from the third party provider.

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.

(via Top Attorney Guide)

Be on the lookout for the proper selection of factors when you need to hire a court reporter for litigation support. There are 2 thought processes for recommendations. One will tell you to judge the court reporters firm and the second tells you to assess the individual court reporter for their own abilities.

As we focus on the individual court reporter in this discussion there should be two things you consider strongly when hiring a independent court reporter. First is the reporters basic skills and secondly their professionalism and reputation. These are the 2 most important groups attorneys and legal organizations place as factors in their hiring decision for litigation support.

Depositions can become quite sleepy. On the other hand they can become quite fast paced when attorney and witness begin to talk over one another. This can make it quite difficult for a court reporter to remain on task and not miss any of the conversation. A court reporter also needs PC stenography skills and research ability. Depending upon the type of litigation support you want it may be more difficult to find what you’re looking for.

Another obligation is proofreading abilities. Before delivering records, court reporters perform proofreading and modifying to guarantee the precision and cleanness of the pre-trial transcript. Because any person can make a claim to possess revising and proof-reading abilities, it’s often best to make sure that the development of these talents was a part of a reporter’s official coursework.

Outstanding Professionalism and Reputation: Some attorneys and organizations make the error of thinking a court reporter’s personality and demeanor doesn’t matter. While court reporters have interaction with witnesses, their degree of poise, professionalism and respectfulness can truly have a bearing on the standard of a witness deposition. Just as judges and attorneys are not proof against bias and adversarial ideas, neither are court reporters.

Distinct from interrupting a witness and sabotaging an attorney’s line of querying or mis-portraying a witness’s nonverbal behavior, court reporters that are lacking professionalism may also be a technical nightmare to the reporting process. From showing up for witness depositions in dirty clothes to arriving late and not delivering logs on time, less than professional reporters have done it all. To judge a reporter’s professionalism or lack thereof, it is a smart concept to research their past work history and not just depend on the court reporting firms appraisal of their demeanor.

But the most exciting thing going on right now is looking for office space. Wow, what an adventure. There is so many options out there. The hardest is deciding where. Fremont? Pleasanton? San Ramon? Dublin? Hayward? Close to freeway access? Close to BART? Close to restaurants? Decisions, decisions. I will surely keep you posted.

I hope you are enjoying your day. Chat soon.

Our office is open 8:30 – 5:00 Monday through Friday. Telephones are monitored after hours, so please leave a message or email us at depos@mbreporting.com.

Office: 111 Deerwood Road, Suite 200 San Ramon, CA 94583 office: (925) 989-6080 fax: (925) 264-1957

Document Depository: 7950 Dublin Boulevard, Suite 306 Dublin, CA 94568. To view documents, please contact us to make an appointment.

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Our office is open 8:30 – 5:00 Monday through Friday. Telephones are monitored after hours, so please leave a message or email us at depos@mbreporting.com.

Office: 111 Deerwood Road, Suite 200 San Ramon, CA 94583 office: (925) 989-6080 fax: (925) 264-1957

Document Depository: 7950 Dublin Boulevard, Suite 306 Dublin, CA 94568. To view documents, please contact us to make an appointment.

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Our office is open 8:30 – 5:00 Monday through Friday. Telephones are monitored after hours, so please leave a message or email us at depos@mbreporting.com.

Office: 111 Deerwood Road, Suite 200 San Ramon, CA 94583 office: (925) 989-6080 fax: (925) 264-1957

Document Depository: 7950 Dublin Boulevard, Suite 306 Dublin, CA 94568. To view documents, please contact us to make an appointment.

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Our office is open 8:30 – 5:00 Monday through Friday. Telephones are monitored after hours, so please leave a message or email us at depos@mbreporting.com.

Office: 111 Deerwood Road, Suite 200 San Ramon, CA 94583 office: (925) 989-6080 fax: (925) 264-1957

Document Depository: 7950 Dublin Boulevard, Suite 306 Dublin, CA 94568. To view documents, please contact us to make an appointment.

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