August 10, 1981
The Michigan Code of Professional Responsibility does not per se prohibit unrelated lawyers in a firm from utilizing the services of a court reporter who is a relative of an attorney-member of the firm, however, the family relationship should be disclosed to opposing counsel and should opposing counsel object an independent unrelated court reporter should be used.
References: Canon 1 and 9.
A law firm regularly utilizes the services of a particular court-reporting agency for the purpose of taking depositions. The sister of one of the principals in the firm is employed by the court-reporting service. You ask if there is any ethical impropriety on the part of the sister, the court-reporting agency, or the law firm if the sister, as part of the regular rotation of the court-reporting agency, takes a deposition for attorneys of the firm with the exception of her attorney-brother.
This Committee's jurisdiction is limited to answering inquiries from members of the State Bar of Michigan concerning an attorney's future conduct. The Code of Professional Responsibility does not apply to non-lawyers and, therefore, this opinion will be limited to ethical considerations having to do with the firm's contemplated conduct.
Nothing in the Michigan Code of Professional Responsibility per se prohibits an unrelated lawyer from utilizing the services of a court reporter who is a sister or other relative to a member of the law firm, however, Canons 1 and 9 offer guidance on the subject matter of your request.
Canon a tells us that "a lawyer should assist in maintaining the integrity and competence of the legal profession" and Canon 9 states that "a lawyer should avoid even the appearance of professional impropriety."
The Canons are statements of norms expressing in general terms the standards of professional conduct expected of lawyers in their relationship with the legal system. While they do not apply to non-lawyers, the Canons do define the type of ethical standards the public has the right to expect of lawyers and non-attorney employees and independent contractors.
In the spirit of Canons 1 and 9, the Committee believes that the law firm utilizing the services of a court reporter whom is a close relative of an attorney member of the firm should disclose the relationship to opposing counsel. Should opposing counsel after having considered the issue, indicate a preference for an unrelated court reporter, the integrity of the administration of justice would be furthered by use of an independent unrelated court reporter.
Furthermore, if the opposing counsel objects to using a court reporter related to a principal in the firm, it would be improper to insist upon using the related court reporter since his/her use may well give rise to an additional basis to challenge the reliability of the deposition transcript.
For the same reasons, the Committee believes that the sister should not, under any circumstances, take depositions in cases in which her attorney-brother is directly involved.