It’s summer! Time for
some lighter, or at least shorter, ethics fare.
Today’s lesson: Failing to pay your court reporter or expert witness is unethical
and can subject the miscreant to professional discipline.
No, you didn’t snooze through that legal profession
class. And don’t bother reaching for
your RPC – you won’t find anything precisely on point in the Rules of
Professional Conduct. Rather this is one
of those legal gems every Colorado attorney should know and take as gospel,
because the Colorado Supreme Court does.
What? You want authority? Did I mention this is summer?
Okay, how about People
v. Stauffer, 745 P.2d 240 (Colo. 1987)?
There attorney John Stauffer arrived at the deposition of his physician
expert claiming he had forgotten his checkbook.
Attorney Stauffer gave the good doctor a promissory note, which he
proceeded not to pay. The court held:
Your conduct in executing and
failing to pay a promissory note to Dr. Swinehart after you had agreed to pay
him a fee of $500 for expert testimony he supplied at your request in a
personal injury action, violates DR 1‑ 102(A)(6) (conduct that adversely
reflects on your fitness to practice law).
745 P.2d at 241.
Three years later the court found that failing to pay one’s
court reporter was equally contemptuous.
See People
v. Goens, 803 P.2d 480, 482 (Colo. 1990). See
also People
v. Nelson, 35 P.3d 641, 644 (Colo. O.P.D.J.
2001) (earlier letter of admonishment arose from failure to pay expert); People
v. Jukola, 2001 WL 1725002 (Colo.O.P.D.J.) (approving conditional admission
of misconduct and publicly censuring respondent for failing to pay a court
reporter); People
v. Serna, 2001 WL 1161325 (Colo.O.P.D.J.) (attorney negligently failed
to pay court reporter charges within a reasonable time in violation of Colo.
RPC 1.15(b)); People
v. Galindo, 908 P.2d 77, 78 (Colo. 1995) (respondent suspended 30 days
for failure to pay expert fees).
With such a consistent record of professional disciplinary jurisprudence one would think Colorado attorney's would have learned by now that stiffing one's reporter or expert is hazardous to one's law license. Yet the current (July 2012) edition of The Colorado Lawyer reports another cautionary tale of an attorney failing to pay an expert. The attorney was required to attend Ethics School and pay all costs associated with a three-year diversion agreement. Not exactly the best way to start one's summer. 41 The Colorado Lawyer at 140.
With such a consistent record of professional disciplinary jurisprudence one would think Colorado attorney's would have learned by now that stiffing one's reporter or expert is hazardous to one's law license. Yet the current (July 2012) edition of The Colorado Lawyer reports another cautionary tale of an attorney failing to pay an expert. The attorney was required to attend Ethics School and pay all costs associated with a three-year diversion agreement. Not exactly the best way to start one's summer. 41 The Colorado Lawyer at 140.
The rule usually cited in such cases
is Colo. RPC 8.4(d) (“It is professional misconduct for a lawyer to: engage in
conduct that is prejudicial to the administration of justice”), which makes
sense. The wheels of justice would grind
even more slowly if court reporters and experts could not rely on an engagement
by an attorney as a guaranty of payment.
The invocation of RPC 1.15(b) in People
v. Serna appears to reflect that attorney Serna’s client advanced the funds
to pay the court reporter, which Serna co-mingled and then negligently misappropriated.
Can an attorney contract around
this potential professional blemish by requiring a court reporter or expert to
look solely to the client for payment?
Perhaps, but what court reporter would take that deal? While I have met several attorneys surprised to
learn that the Colorado Rules of Professional Conduct place us in the roll of guarantor
of court reporter’s and expert’s fees, I have yet to meet a court reporter who
didn’t know that. Counsel’s suggestion
of a non-recourse engagement should be met by any reporter or expert with a
hearty belly laugh followed by a curt “no,” which would be appropriately preceded
with a reference to the Christian place of eternal damnation.
No, the solution and better
practice is to insist that your client advance adequate funds for such costs if
there is any doubt as the client’s creditworthiness (and, of course, don’t then
negligently misappropriate them as Cecilia
Serna did).
Have a great summer.
