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Delaware Supreme Court Punts On Court-Reporting CertificationThe Delaware Supreme Court has opted not to pursue establishing ethical guidelines for court reporters through an administrative directive and, instead, the issue could be resolved through legislation in the General Assembly.
2013-06-26 12:00:00 AM
The Delaware Supreme Court has opted not to pursue establishing ethical guidelines for court reporters through an administrative directive and, instead, the issue could be resolved through legislation in the General Assembly. Chief Justice Myron T. Steele cited several reasons for the decision, including the court's limited financial resources and the possibility of reigniting a firestorm similar to the one in 2009, when it rescinded the administrative directive requiring certification after it was sued over a provision in the directive banning court reporters from negotiating contracts with litigants.
Earlier this year, the Supreme Court posted a request for written comments on its website seeking input from attorneys on best practices for court reporters. At the time of the request, the court did not say why it was seeking proposals on court reporter ethics.
Sources told Delaware Law Weekly that the court was mulling the possibility of reinstating certification requirements for court reporters, as well as the more controversial issue of whether court reporters should be prohibited from negotiating price discounts with preferred clients.
Steele released a statement, via email, to DLW confirming the court's decision not to move forward with an administrative directive regulating court reporters' ethical guidelines.
"After considering the court's experience with regulation in the past, the scope of the current request, the association's dissatisfaction with the website-posted ethical principles and guidelines for practicing court reporting in this state, this court unanimously voted to reject Supreme Court regulation of court reporters by administrative directive," Steele said. "Time and financial resources available to the court do not, on a cost-benefit analysis, justify Supreme Court involvement."
Steele added that the court has notified the Delaware Court Reporters Association that any efforts to establish ethical guidelines should be pursued through legislation in the General Assembly.
"We have informed the association that, similarly with other professions, engineers, veterinarians, land surveyors, architects and the like, they should consider a statutory regulatory framework for self-policing their profession," he continued. "The Supreme Court does not 'prefer' any course the reporters might choose in order to impose regulation on themselves. The trial courts select qualified, competent reporters for courtroom work. Their selection process guarantees competency. The courts' inherent power to manage litigation guarantees shoddy work will not be tolerated from any reporter, court-employed or otherwise, who submits their work product in connection with the litigation process."
"We decline to use scarce court resources and to divert ourselves from our core business to regulate the marketplace for court reporting," Steele added. "If the court reporter community seeks a regulatory scheme to regulate their professional marketplace through General Assembly action, we will not stand in their way."
The Delaware Court Reporters Association did not respond to a request for comment.
In 2001, the Delaware Supreme Court adopted Administrative Directive No. 132, which required all state court reporters to be certified through programs sponsored by the National Court Reporters Association, or NCRA. Directive No. 132 also barred court reporters from offering lower costs for giant companies involved in a large volume of litigation. The companies would then contract with the court reporting services and direct law firms to use the specific court reporter. As a result, several court reporting agencies would represent both parties in the same litigation, but one party would often receive more favorable pricing.
However, the court rescinded Directive No. 132 in May 2009, when it implemented Directive No. 172. The new directive eliminated both court reporter certification and the ban on negotiating contracts. In addition, Directive No. 172 also eliminated the Delaware Board on Certified Court Reporters, which monitored for ethics violations.
Directive No. 172 was adopted in response to a 2009 lawsuit by Esquire Deposition Services LLC, a court reporting service, against the Delaware Board on Certified Court Reporters. The lawsuit, which was filed in the U.S. District Court for the District of Delaware, sought a declaratory judgment that Directive No. 132 was unconstitutional because its ban on allowing court reporting firms to negotiate contracts with litigants violated the contracts and commerce clauses of the U.S. Constitution.
Although Esquire was only challenging Directive No. 132's contract restrictions, the state Supreme Court opted to rescind the entire directive, including the rules governing certification. At the time, the court said that Directive No. 132 "is not the optimal way to accomplish the directive's intended purpose."
Once the Supreme Court eliminated both the economic and certification requirements, Esquire's lawsuit became moot and was dismissed.
Sources in the legal community have said that the Supreme Court may have been concerned about a similar backlash if it pursued the issue now and preferred to have the issue debated and, ultimately, resolved by the General Assembly.
"I think because of the previous experience with the federal lawsuit, the Supreme Court was concerned and did not want to take any risks," said Lorraine Marino, former chief reporter for the Delaware Court of Chancery and a member of a committee of court reporters, which was active in the 1990s. "I think the safer route was to go to the General Assembly and have a bill enacted there."
Other organizations that have attempted to enact contractual ethics rules have also faced uphill battles. In 1995, the NCRA attempted to implement similar ethics guidelines on a national level, but was unable to do so. The NCRA had reached out to the U.S. Department of Justice for an opinion on whether it could adopt a provision barring court reporters from reaching separate contracts with both parties in a lawsuit. However, the DOJ told it that such a provision could violate commerce and trade laws, so it opted not to adopt the provision.
"My understanding is that there was not a dispute over the certification or continuing education requirements," Marino continued. "But there is a mixed feeling among the court reporting community on the contractual issue. I think because of the lack of consensus, the Supreme Court had a desire to keep the issue in the General Assembly."
It is not known when or if the General Assembly plans to tackle the issue of court reporting.
"I haven't been involved in the discussions nor do I know if any occurred," Marino said. "I certainly haven't heard anything on this issue."
Marino said she supports both the certification requirement and the code of ethics, which she said is necessary to ensure that court reporters are "conflict-free and treat both sides fairly."
"I really have the view that court reporters giving gifts to the law firm staff is not consistent with being impartial officers of the court," she said. "To me it is very important and why I believe there needs to be a code of ethics."