Can a lawyer tell a court reporter not to inform opposing counsel that the lawyer ordered a deposition or trial transcript?

Plain-English summary

The Committee was asked whether it is unethical for a lawyer to instruct a court reporter not to inform opposing counsel that the lawyer has requested transcription of a deposition. The opinion made the answer fact-specific. It concluded there is no ethical requirement to disclose to opposing counsel that one has ordered a transcript, so in the normal course an instruction telling the reporter not to contact opposing counsel to ask whether a copy is wanted is not unethical.

The opinion identified the situation in which the instruction would cross the line. If the lawyer knows that opposing counsel expects notice from the reporter when a transcript is made, then instructing the reporter not to give that notice would violate DR 1-102(A)(4), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation. The opinion described how such knowledge commonly arises: opposing counsel often arranges, at the close of a deposition, to receive a copy only if the deposing counsel orders transcription, and in that case the reporter has a duty to provide the copy when the deposing counsel orders. By contrast, where the reporter merely makes a business practice of contacting opposing counsel to offer a copy, it is not unethical to tell the reporter not to do so. The same analysis applies to a lawyer who orders a daily trial transcript.

The opinion added that it does not affect any disclosure obligation that might exist under any law, rule of judicial procedure, or court order.

Currency note

This opinion was issued in 1988, before the Alaska Bar Association's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct (and before Alaska adopted the Rules of Professional Conduct at all; it applies the former Code of Professional Responsibility). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does a lawyer have to tell opposing counsel that a transcript was ordered?

A: The opinion concluded there is no general ethical duty to disclose that a transcript has been ordered, so silence about it is ordinarily permissible.

Q: When does instructing the reporter not to notify opposing counsel become unethical?

A: The opinion concluded it violates DR 1-102(A)(4) (dishonesty or deceit) when the lawyer knows opposing counsel expects to receive notice from the reporter if a transcript is made.

Q: Does the same rule apply to daily trial transcripts?

A: Yes. The opinion concluded a lawyer ordering a daily trial transcript may instruct the reporter not to inform opposing counsel, subject to the same limit about known expectations of notice.

Background and rules framework

The opinion applied DR 1-102(A)(4) of the former Alaska Code of Professional Responsibility, which bars conduct involving dishonesty, fraud, deceit, or misrepresentation, the analog of Model Rule 8.4(c). It read that rule against the absence of any general duty to disclose a transcript order, and noted that separate disclosure duties may arise under procedural rules or court orders.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 1-102(A)(4) (dishonesty, fraud, deceit, or misrepresentation) (cf. Model Rule 8.4(c))

See also

• ABA Formal Op. 92-363: Threatening Prosecution
• AK Bar Ethics Op. 96-2: Disclosing a Due-on-Sale Clause

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/88-4.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION 88-4

Instructions to Court Reporters Regarding Transcriptions

The Committee has been asked whether it is unethical for an attorney to
instruct a court reporter not to inform opposing counsel that the attorney has
requested transcription of a deposition.
Whether such request will constitute unethical conduct depends on the
facts and circumstances at the time the request is made. There is no ethical
requirement that an attorney disclose to opposing counsel that he/she has
requested transcription of a deposition. Therefore, in the normal course of
events an instruction to a court reporter not to contact opposing counsel to ask
if counsel wants a copy is not unethical.
However, if the attorney knows that opposing counsel expects notice from
the court reporter if transcription is made, then the request would be
unethical. DR1-102(A)(4) states that a lawyer shall not engage in conduct
involving dishonesty, fraud, deceit or misrepresentation. The Committee
believes it would be a violation of this disciplinary rule to instruct a court
reporter not to inform opposing counsel of the request where the lawyer knows
opposing counsel expects to receive notice. Counsel's knowledge that opposing
counsel

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expects notice might arise in several ways. The most common situation is
likely to arise at the conclusion of the deposition since often, if counsel taking
the deposition does not order its transcription, opposing counsel may instruct
the court reporter to provide him with a copy only if it is ordered by counsel
taking the deposition. In such a case the court reporter would have a duty to
provide opposing counsel with a copy when the counsel taking the deposition
requests it. However, to the extent the court reporter, for business reasons,
simply makes a practice of contracting opposing counsel to inquire whether
counsel wishes a copy, it would not be unethical for counsel to instruct the
court reporter not to do so.
Similarly, a lawyer who orders a daily transcript during a trial may
instruct the court reporter not to inform opposing counsel that the lawyer has
ordered the transcript.
This opinion does not affect any obligation of disclosure which might exist
under any law, rule of judicial procedure, or court order.
Submitted by the Alaska Bar Association Ethics Committee on September
1, 1988.
Adopted by the Board of Governors on September 9, 1988.

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