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court stenographer

What follows is a guest blog post on a very timely topic, and one that may affect the practice of many Arizona lawyers. It is written by Stinson Leonard Street attorney Blair Moses (whose bio is at the end). Here’s Blair:

Important Changes to the Arizona Code of Judicial Administration (ACJA) Governing Court Reporting and Their Impact on Arizona Attorneys

In September 2013, the Arizona Supreme Court released proposed amendments to the Arizona Code of Judicial Administration (ACJA) governing court reporting—ACJA § 7-206. Arizona court reporters had immediate concerns that the proposed amendments might affect the integrity and impartiality of court reporters and promote unfair billing, exorbitant costs, and a break in the chain of custody of the confidential record. These concerns were due in part to amendments that 1) allowed national court reporting companies, who are not currently licensed in Arizona and have no accountability to the Arizona judicial system, to take control of the confidential record and all production and billing for that record; 2) limited the court reporter’s duty and accountability to accurately write the testimony; and 3) restricted the court reporter’s ability to inquire about and ensure fair dealing and equitable treatment of all parties.

Moreover, these proposed code changes could have negatively impacted an attorney’s duty to safeguard client information and confidences. The proposed amendments allowed the release of testimony and exhibits to an “authorized agent,” such as a national court reporting company, without requiring permission or notification of the witness or any party to a proceeding. Attorneys, like certified court reporters, have ethical obligations to prevent disclosure of confidential and protected information to nonparties of a proceeding and to prevent confidential information from being archived by a third party. Thus, releasing transcripts and exhibits to, and archiving by, a third party may have violated attorneys’ Ethical Rule 1.6.

Following the expression of these concerns at various public forums and through public comment letters from Arizona court reporters, Arizona attorneys, and out of state court reporters facing similar amendments, Arizona Supreme Court Chief Justice Berch appointed a Task Force to evaluate the proposed amendments, receive input on concerns, and make final recommendations regarding amending the code. And after months of analysis, collaboration, and attendance at meetings with the Office of Administration, the Court Reporting Board, the Committee on Superior Court, Chief Justice Berch’s Task Force, and the Arizona Judicial Council by Arizona court reporters and members of the Arizona Bar, the Arizona Judicial Council (“AJC”) approved significantly revised amendments to ACJA § 7-206 on March 25, 2014. The Supreme Court Order amending ACJA § 7-206 as approved by the AJC was entered May 21, 2014, and became effective September 15, 2014.

The final amended code is a significant improvement over the initial proposed amendments and goes a long way to ensure fair treatment of all parties in an action, including equal billing to all parties, preserving the confidentiality of the record, and preserving the ethical obligations of court reporters and attorneys alike. Accordingly, certain changes in the final code impact attorneys’ interactions with court reporters and reporting firms. A generalized summary of the more important of these changes to ACJA § 7-206 follows:

1. Individuals and entities, such as national court reporting companies, providing reporting services in Arizona must be registered with the Arizona Supreme Court, must comply with all provisions of ACJA § 7-206, including all ethical obligations in the Code of Conduct, and must submit to the authority of the Arizona Supreme Court.

2. Only an attorney, a party, or a registered reporting firm can retain court reporting services in Arizona cases. Arizona Certified Reporters and Registered Reporting Firms are prohibited from accepting assignments from any other individual or entity.

 

3. Reporters and reporting firms must now provide itemized rate disclosures prior to the commencement of a deposition and must charge all parties the same price for the same product or service.

a. Each invoice attorneys receive from a reporter or reporting firm must include a certification that the invoice and other business terms comply with the ethical obligations set forth in ACJA § 7-206.

b. If an attorney wants to review all parties’ invoices, the attorney must make that request of the Certified Reporter. Upon the attorney’s request, the Certified Reporter must provide copies of all parties’ invoices.

 

4. Reporters and reporting firms in a continuing contractual relationship[1] with “a party, attorney, or an entity with a financial interest in a case” must give written notice of that relationship to attorneys in the case and any unrepresented parties

a. The notice of contract must be made by the reporter and/or firm upon retention of their services and must contain the duration of the contractual relationship and whether it is exclusive.

b. Upon receiving written notice from a reporter or reporting firm that they are in a continuing contractual relationship, attorneys and unrepresented parties have five business days to respond with a written objection. If an attorney or any other relevant party objects, neither that reporter nor that firm can cover the deposition.

 

5. To enhance and ensure security, confidentiality and privacy, reporters and/or reporting firms may release (sell) transcripts only to witnesses, parties, and their attorneys, unless authorized otherwise by court order or agreement of the parties.

6. Attorneys and their clients can no longer receive from Arizona reporters, reporting firms, or their affiliates “additional advocacy or litigation support services, including but not limited to claim investigation assistance, trial preparation assistance, and deposition summaries.”

Except as expressly set forth, attorneys cannot waive the Arizona Certified Reporters’ and Registered Reporting Firms’ duties and obligations under ACJA § 7-206 by disclosure, agreement, stipulation, or otherwise.

Blair Moses is an associate in the Phoenix office of Stinson Leonard Street LLP. She primarily concentrates her practice in the area of commercial litigation, bringing a depth of experience that includes the representation of large corporations, small businesses and individuals. She also has experience representing defendants in labor and employment litigation matters. Prior to practicing law, Blair gained extensive experience in the health care field and she now assists in the representation of health care providers.

More information on Blair is here. And she can be reached at blair.moses@stinsonleonard.com

[1] Under ACJA § 7-206(J)(1)(l), a “continuing contractual relationship” is one where a certified reporter or registered reporting firm has a contractual relationship in which reporting services are provided “in multiple cases with a party, attorney, or an entity with a financial interest in a case.” (emphasis added).

Do these old computer ads represent your current technology thinking? Time to adjust your vertical hold.

Do these old computer ads represent your current technology thinking? Time to adjust your vertical hold.

Technology can be nervous-making. And who likes to reveal they have some Very. Basic. Questions? Especially in front of a room full of lawyers?

That appears to be the thinking behind a State Bar educational event to be held on October 17. It is called Technology for Baby Boomers (Part 1): Everything You Wanted to Know about Technology, But Were Afraid to Ask.

Yes, it says Part 1. It is a series, “designed to answer questions attorneys who are not comfortable with technology might have. Bring your laptop or other device to participate in hands-on exercises during the presentation.”

complexity is the enemy says Sir Richard BransonThis first session will address the following topics:

  • Introduction to computers, the Internet and operating systems
  • Microsoft Office, alternative solutions and add-ons
  • Take care of your technology: DIY or outsource?
  • “The Cloud”

More detail and registration information are here.

The other sessions in the series follow in November and December. I’ll let you know the topics as soon as I know them.

Too much? Many lawyers say they want to see more formal attire around the office.

Too much? Many lawyers say they want to see more formal attire around the office.

I am survey-crazy this week, having covered two others in posts this week. And on Change of Venue Friday, what could be more appropriate than survey results regarding casual dress in the law office?

The helpful people at Robert Half Associates surveyed lawyers on the question of professional dress. And they report:

“Managers in the legal field may be pushing back on more casual workplace attire at their law firms and corporate legal departments. In a new survey, 73 percent of lawyers report having a business casual attire policy at their workplace; however, half of these same attorneys would prefer their colleagues to dress more formally in the workplace.”

In their summary, the Robert Half folks noted:

Lawyers were asked: “In general, would you prefer legal professionals dress more formally or casually in the office?” Their responses:

  • Much more formally: 8%
  • Somewhat more formally: 42%
  • Neither more formally nor more casually: 22%
  • Somewhat more casually: 21%
  • Much more casually: 3%
  • Don’t know/no answer: 5%

Because we all love them, I share below an infographic that RHA created depicting the survey results.

Do these results resonate with you? Has the law office gotten too casual? Or is that simply yearning for a time better left behind?

Have a wonderful—and powdered-wig-free—weekend. And here’s that infographic (click to biggify):

Robert Half Legal_Business Casual Attire infographic

Facebook Like thumbs upI’ll admit I was surprised by a headline that recently crossed my desk: “Majority of Law Firm Managing Partners Embrace Social Media”

Really, I thought? So all of that fearful fretting I hear is not representative?

Reading deeper into the release and the survey on which it was based yielded some welcome nuance. No, the conversations I have heard from law firms are not atypical: Many still dislike the medium.

What “The 2014 Managing Partner Social Media Survey–Part 1” makes clear, though, is that managing partners are “overwhelmingly embracing social media, specifically the professional social network LinkedIn.”

Well, if we’re thinking of Linkedin as a social media channel, I guess I’d have to agree. It is a space in the cloud world in which wearing a belt and suspenders is still welcome. So it may surprise few that “more than 90 percent of managing partners have LinkedIn accounts.”

Dig down a bit and the useful survey also reveals that “while 39 percent felt social media is a ‘new and exciting way to interact with others,’ 35.6 percent saw the innovation as a ‘necessary evil’ but said that they would ‘learn to adapt.’”

Belt? Check. Suspenders? Check. Social Media? Um...

Belt? Check. Suspenders? Check. Social Media? Um…

A necessary evil. That’s more like it. Can you hear the kicking and screaming?

Read and download the report here.

And here are some useful takeaways:

  • While 39 percent of respondents overall had a favorable view of social media, this number was 75 percent for managing partners under 40.
  • All managing partners under 50 reported having a LinkedIn account, compared to 86 percent of those 50 and over.
  • The vast majority of managing partners set up their LinkedIn accounts on their own.
  • On average, most managing partners access LinkedIn once a week.
  • Of the few managing partners who reported not being on LinkedIn, the majority cited an inability to see the benefits of the network.
  • Most managing partners belong to four to five LinkedIn Groups.
  • However, 40 percent of managing partners are mainly observers in the Groups to which they belong.

(OK, I really tried to read that third bullet point without smirking. Good on them!)

Part 2 promises to cover “firm-wide social media policies and practices.”

Knight Fdn First Amendment bullhorn cropped

This week, let’s hear what people are thinking. In the next three days’ posts, I’ll share data from recent surveys.

The first comes to us from the Knight Foundation, which sponsored a survey of young people on their views regarding the First Amendment. Happily, they are generally supportive of the basic right (thank goodness for small wonders). In fact, they may be more supportive of it than are adults.

That is actually a reversal of views that have been expressed over the past decade. The Knight folks optimistically indicate that “increased digital news consumption and classroom teaching are driving the change.” The national study of 10,463 high school students and 588 teachers was released last month, on Constitution Day.

The Knight folks continue:

“[The survey] found only 24 percent of students said that the First Amendment goes too far in guaranteeing the rights of religion, speech, press assembly and petition. In comparison, a Newseum Institute survey that tracks adult opinions on the first amendment showed that 38 percent of adults feel this way. This marks a shift: 10 years ago students (35 percent) were more likely than adults (30 percent) to say that the First Amendment goes too far.”

The report also provides great insight into impressions of privacy and surveillance.

Below is an infographic based on the report. And the whole report is available for downloading here.

Knight Fdn First Amendment infographic

In what has become an annual tradition, on Wednesday, the Arizona Women Lawyers Association hosted a debate of the candidates for Arizona Attorney General. Held at the University Club in Phoenix, it featured a packed-to-the-gills room, candidates committed to their goals, and organizers who were committed to: (1) a value-packed event and (2) getting people out on time.

Organizers succeeded on both counts. The candidates? Well, attendees may each have had their own favorites.

AWLA Arizona Women Lawyers Association logoThe format was composed of 10-minute candidate statements, followed by 10-minute rebuttals, and finally audience question. The candidates are Republican Mark Brnovich and Democrat Felecia Rotellini.

Rather than give a blow-by-blow, let me share a few of the candidates’ main points.

Mark Brnovich speaks at the debate of Arizona Attorney General candidates at a forum sponsored by the Arizona Women Lawyers Association, Sept. 24, 2014.

Mark Brnovich speaks at the debate of Arizona Attorney General candidates at a forum sponsored by the Arizona Women Lawyers Association, Sept. 24, 2014.

Brnovich:

“We as a society cannot tolerate when our most vulnerable are unprotected.”

“I am fully ready to push back against the Obama administration and its job-killing carbon regulations, which have a devastating impact on the economy and jobs.”

“He is such a fiscal conservative, he won’t even buy vowels for his last name.” (quoting Maricopa County Attorney Bill Montgomery)

Felecia Rotellini speaks at the debate of Arizona Attorney General candidates at a forum sponsored by the Arizona Women Lawyers Association, Sept. 24, 2014.

Felecia Rotellini speaks at the debate of Arizona Attorney General candidates at a forum sponsored by the Arizona Women Lawyers Association, Sept. 24, 2014.

Rotellini:

“I want to return the Attorney General’s Office to its core mission; it should be an independent watchdog for the people. I worked to be sure mortgage fraud was made a criminal act.”

“I will take politics out of the office. When you’re in the trenches, you’re colorblind. There’s no red; there’s no blue.”

“It is important that the Attorney General not be an ideologue, and that the elected official appreciates the awesome power of the office.”

On rebuttal, the candidates became considerably more impassioned. In response to Rotellini comments, Brnovich told the audience that he is not an ideologue or an extremist.

Rotellini countered by discussing her opponent’s positions on pro-choice issues, SB1062, the Corrections Corporation of America, and Medicaid restoration, among other topics. She also mentioned the $700,000 in “dark money,” which she claims came from the Koch Brothers, which was spent in the primary in a successful effort to defeat incumbent Tom Horne.

Audience questions covered sex trafficking, same-sex marriage laws, lawsuits regarding federal mandates, and what changes each would make in the ranks of career prosecutors in the Attorney General’s Office.

Both candidates urged attendees to view all their positions on their respective websites:

Judge George Anagnost moderates the We the People panel, Sept. 17, 2014. He gestures toward panelists Bob McWhirter and Doug Cole.

Judge George Anagnost moderates the We the People panel, Sept. 17, 2014. He gestures toward panelists Bob McWhirter and Doug Cole.

Last week, I attended the annual “We the People” CLE program, which gathers smart folks and lets them loose on the most recent High Court Term. The follow-up was complete and often enlightening.

Paul Bender, Doug Cole and Bob McWhirter offered insightful and often humorous takes on a wide variety of the cases taken by SCOTUS. Led by moderator Judge George Anagnost, they were a formidable intellectual team.

(I appreciated Professor Bender’s unintended error when he misquoted the opening words for the Court’s day: “God save the United States from this honorable Court.” Who doesn’t agree with that occasionally?)

And yet I continue to wonder about the marrying of content with the panelists who discuss it. I have covered this topic—diversity—before, and so let me mention it again.

As always, the cases explored by the panel touch on nearly all areas of human experience. But, as an example, how would the treatment of even one case—Hobby Lobby—have varied had there been even one woman scholar on the panel? Some closely held businesses apparently are untroubled by any medical product or procedure save one—and that one affects women most of all. Would a woman scholar’s view have offered a different, compelling vision?

Of course, I do not believe that all women—or all of anyone—think the same way about legal topics. But, conservative, liberal or in between, a woman panelist may have taken more than an academic interest in the issue.

Professor Paul Bender, seated, at the We the People panel, Sept. 17, 2014.

Professor Paul Bender, seated, at the We the People panel, Sept. 17, 2014.

The same is true of the Shelby case regarding the Voting Rights Act, or the Schuette case regarding affirmative action, or the McCullen case regarding abortion-clinic buffer zones, all ably examined. A mandatory number of African American scholars, or women, per panel is not what I’d expect. But their complete absence is surprising. (Imagine attendees’ surprise if they walked in and saw an all-woman panel, or an all-Black panel. THAT would be news!)

Adding to the oddity of the absence of diversity was the extended discussion on that very topic by the panel. Professor Bender, for example, took pains to note that all of the current Supreme Court Justices have had professional lives as professional judges, rather than some form of law practice (except for Justice Kagan). And he and others noted that the Court may be diverse in some ways, but not in socio-economics, or geography, or even religion (currently, the Court has no Protestants, six Catholics and three Jews).

An attendee could be excused for feeling some disconnect, sympathetic to the desire to see a diverse bench, while at the same time looking around the very room in which we sat …

Bob McWhirter presents at the We the People panel, Sept. 17, 2014.

Bob McWhirter presents at the We the People panel, Sept. 17, 2014.

Again, and in advance of the usual commenters who will say this is window-dressing (or worse): This is about excellent legal education, and a topic on which the State Bar of Arizona has pledged its focus. I found the discussion to be first-rate, but how can we know all of the excellent diverse commentary we are missing? A consistent absence of diverse voices on legal topics that disproportionately affect those very voices is odd, at best. And it makes you wonder if you are getting a full and complete examination of the issues underlying a Supreme Court docket.

That, after all, is what is promised.

OK, have at it in the comment box below.

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