Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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Is it unethical for an attorney to fail to pay reasonable reporter's fees for contracted services?
It is unethical for an attorney to fail to pay reasonable reporter's fees for contracted services. However, such failure will subject the attorney to discipline only where the attorney intended not to pay the fees when he contracted for the services. That intent may be inferred from delayed payment and other circumstances.
The State Bar Act (Business and Professions Code section 6000 et seq.).
The Committee has been asked whether it is unethical for an attorney to fail to pay a reporter's fees for services provided pursuant to contract between the attorney and the reporter. For purposes of this opinion, we assume there is no defense to the reporter's claim for the fees; i.e., the fees are reasonable and payment is due as a matter of contract law.
Society's generally accepted moral principles and values include the duty to pay just debts when due. That ethical duty is reflected in the law of contracts. Thus, an attorney's failure to pay a reporter's fees is clearly unethical.
The duty, of course, extends to nonattorneys as well as to attorneys. Yet its breach by an attorney is a matter of particular concern to the legal profession. Frequent breach of the duty by attorneys tends to bring the profession into disrepute. Moreover, it may prevent other attorneys from obtaining necessary credit.
The State Bar Act (Bus. & Prof. Code, 6000 et seq.) does not, however, subject attorneys to discipline for all unethical conduct. For instance, while conviction of a crime clearly implies unethical conduct, such conduct provides a basis for discipline only where the crime involves moral turpitude. (Bus. & Prof. Code, 6101.) With certain exceptions, the approach of the Act is to impose professional discipline only for professional misconduct; i.e., misconduct clearly related to an attorney's professional performance.
Accordingly, reference must be made to the State Bar Act to determine whether its proscriptions extend to failure to pay the fees of a reporter.
The Act provides that the Board of Governors of the State Bar may, with the approval of the California Supreme Court, formulate and enforce rules of professional conduct, the wilful breach of which subject attorneys to discipline. (Bus. & Prof. Code, 6076 and 6077.) However, none of the Rules of Professional Conduct adopted pursuant to section 6076 relate to failure to pay reporter's fees.
Section 6100 of the Business and Professions Code provides, in part:
"For any of the causes provided in this article (6), arising after his admission to practice, an attorney may be disbarred or suspended by the Supreme Court."
One of the causes, i.e., dishonesty, set forth in section 6106 of article 6 of the Business and Professions Code most closely governs the question of whether failure to pay a reporter's fees subjects an attorney to discipline. Section 6106 provides, in pertinent part:
"The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension."
Thus, the question arises whether the word "dishonesty" as used in section 6106 of the Business and Professions Code extends to failure to pay reporter's fees. The decisions interpreting the section suggests it does not necessarily extend to such failure.
Alkow v. State Bar (1952) 38 Cal. 2d 257, involved the issuance of a check by an attorney to a sheriff at a time when he knew that he did not have sufficient funds in the bank for payment of the check. The Supreme Court stated:
"His continued practice of issuing checks which he knew would not be honored violates 'the fundamental rule of ethics--that of a common honesty--without which the profession is worse than valueless in the place it holds in the administration of justice.' (Tatlow v. State Bar 5 Cal.2d 520, 524 [55 P.2d 214].)"
Alkow v. State Bar, supra 38 Cal.2d at p. 264, suggests an attorney's failure to pay a reporter's fees would be "dishonest" only if the attorney intended not to pay the fees at the time he contracted for the reporter's services.
Opinion No. 74-9 of the Committee on Professional Ethics of the Massachusetts Bar Association makes the same distinction:
"When a lawyer requests and accepts the services of a court reporter, there is at least an implied understanding, in the absence of other express agreement between the lawyer and the reporter, that the lawyer will pay for such services within a reasonable time after they are rendered. If the lawyer requests and accepts such services with an actual intention not to pay for them within a reasonable time, he is guilty of conduct which fairly may be characterized as involving dishonesty, deceit, or misrepresentation.
"We believe that the crucial consideration is the intention of the lawyer at the time when he incurs the obligation. In most instances such intention cannot be objectively determined and must be inferred from circumstances. An original intention not to pay might reasonably be inferred from a lengthy and unexplained passage of time without payment in a particular instance, or from unexplained repeated instances of nonpayment or unreasonably delayed payment."
We adopt the reasoning of the Massachusetts Committee on Professional Conduct. Moreover, we add two other circumstances from which it may be inferred that the attorney did not intend to pay the fees at the time he incurred the obligation: first, where the attorney failed to advise the reporter in writing at the time the services were contracted that he would not be responsible for payment and then seeks to excuse nonpayment on the basis his client is solely responsible for the fees (opn. No. 7 of the Minnesota State Board of Prof. Responsibility (1974)), and, second, failure to respond to communications from the reporter regarding nonpayment of the fees.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
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