Sunday, July 1, 2012

Stiffing Court Reporters and Experts Can Be Hazardous To Your Law License

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.

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.