Opinion 99-5
(September 1999)

The inquirers advise that they are associate attorneys at a Philadelphia law firm with an office in New Jersey. The firm's practice consists mainly of civil litigation, with a large component being insurance defense work. Both of the inquirers' wives have a financial interest in a local court reporting agency. Their wives are not court reporters and are not involved in the agency's day-to-day operations, but are involved in some marketing activities for the agency. Inquirers ask whether they and other attorneys at their firm may use the court reporting services of the agency in which their wives have a financial interest.

The Committee believes that the inquirers may use the court reporting services of their wives' agency if the requirements of Pennsylvania Rule of Professional Conduct ("Rule") 1.7(b) are met. This Rule provides:

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after full disclosure and consultation.

Thus, the inquirers must believe that the representation will not be adversely affected and the client must consent, after full disclosure and consultation, to use of inquirers' wives' court reporting agency. In determining whether the representation may be adversely affected and in consulting with their clients, inquirers should consider and discuss with their clients the potential for a negative impact on the client's case should issues arise about the accuracy of a transcript.

In this regard, inquirers should be aware of Senate Bill No. 774, referred to the Judiciary Committee earlier this year. The bill, if enacted, would prohibit court reporters from providing services to an attorney or law firm under any agreement that would undermine the impartiality of the reporter or give, or appear to give, an advantage to any party. The bill provides that a transcript reported in violation of these prohibitions may not be introduced in evidence or used for any purpose in a legal action.

With respect to whether other members of the inquirers' firm may use the services of the court reporting agency, the Committee believes that they may, provided that all attorneys (and/or these persons under their supervision) with actual knowledge of the fact that their colleagues' (the inquirers') wives have a financial interest in the court reporting agency must, like the inquirers, meet the requirements of Rule 1.7(b), as described above. This obligation arises from Rule 1.10(a), under which actual and potential conflicts of one lawyer in a firm are imputed to other lawyers in the firm.

The Committee also considered whether there is an obligation to inform opposing counsel that inquirers' wives have a financial interest in the court reporting agency when that agency is used. The Committee concluded that, in most circumstances, such a disclosure need not be made. In circumstances where the accuracy of the transcript is at issue, however, the Committee believes that such a disclosure must be made to both opposing counsel and the tribunal under Rules 3.3(a) and 3.4(a), because the financial interest of the inquirers' wives in the court reporting agency might be considered in that situation to have evidentiary value.

This opinion addresses the issues raised under the Pennsylvania Rules of Professional Conduct only. It is beyond the jurisdiction of this Committee to opine on the application of New Jersey's professional responsibility rules.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.