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
Follow @azatty[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).
AZ Attorney 
January 5, 2015 at 9:28 am
Was this the opinion that was rendered as a result of the Magna v. AZ Board of Court Reporters or is that a pending action? Can’t seem to find any information on it.
January 22, 2015 at 1:29 pm
Tony, I wanted to be sure you saw that we were able to post a reply (below) from the blog-post author, Blair Moses.
January 5, 2015 at 9:36 am
Excellent question, Tony. I’ve shared it with the guest author and am awaiting her response. Thanks!
January 22, 2015 at 1:28 pm
A reply from blog post author Blair Moses: Tony, the amended court reporter regulations summarized in this article are not an opinion from the Magna Legal Services, LLC v. State of Arizona ex rel. Board of Certified Reporters case. That case was dismissed with prejudice on July 8, 2014. Although the filing of that lawsuit led to the initial proposed amendments to ACJA § 7-206, the final amended code was the result of the initial collaborative efforts of Arizona court reporters and attorneys and, ultimately, the Task Force appointed by Chief Justice Berch to evaluate the proposed amendments, receive input on concerns, and make final recommendations regarding amending the code. The Task Force heard from supporters of Magna’s position and from court reporters and members of the Arizona Bar. The Task Force then recommended final amended regulations to the Arizona Supreme Court, which ordered that the amended regulations be adopted with an effective date of September 15, 2014.
January 29, 2015 at 8:56 am
Just seeing this now. Thank you for your response. Quick question, what is the purpose of the contract disclosure if the firm is already required to provide a rate disclosure AND charge parties equal price for equal service?
February 19, 2015 at 11:55 am
A reply from blog post author Blair Moses:
One of the major concerns addressed during the analysis and evaluation of the amendments to the court reporter code was national court reporting companies entering into continuing contractual relationships with court reporters to perform services for more than one particular case. The concern with these contracts to perform multi-case depositions is that the court reporter appears to be an “employee”—“in essence a captive court reporting firm”1—of a party, firm or entity with a financial interest in the case. This gives the appearance that the court reporter is not acting in a neutral, impartial manner as ethically required under the code. In fact, hundreds of members of the Arizona State Bar agreed in a public forum regarding the code amendments that “[l]ike judges, court reporters are to ‘avoid impropriety and the appearance of impropriety in all professional activities . . . and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial system.’”2
Thus, even though the final code requires the provision of rate sheets prior to commencement of a deposition, and requires that all parties must be charged the same prices for services, that alone does not dispel the appearance of impropriety and lack of impartiality that accompanies contracts to perform multi-case depositions. Accordingly, the new code requires that a certified reporter or registered reporting firm in a continuing contractual relationship where reporting services are provided “in multiple cases with a party, attorney, or an entity with a financial interest in a case” must disclose the contract in writing. The parties then 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.
1. Taken from a transcription of the March 6, 2014, Task Force meeting.
2. See http://azdnn.dnnmax.com/forumacja/Forum/tabid/111/view/topic/forumid/47/postid/2306/Default.aspx, page 3, attachment to the second post, dated 10/8/2013, 11:37 AM.
February 19, 2015 at 1:33 pm
Ha! So, in other words, it adds transparency to the appearance of impropriety… Makes total sense. I think it’s good that it goes beyond just pricing and fair pricing to ensure that everybody understands the totality of the business relationships between court reporters and contract clients.
Effectively, smaller law firms and clients without resources (and contracts) will benefit from corporate contracting which will, in turn, weed out unethical contracts where services are given away for next to nothing and made up for on the poor copy sales. Very smart and fair.