If a lawyer does not pay a court reporter's bill, is that an ethics violation, and when can it lead to discipline?

Currency note

This opinion was issued in 1979, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets the State Bar Act (Business and Professions Code section 6000 et seq.), particularly the dishonesty and moral-turpitude provision of section 6106, an area now also addressed by Model Rule 8.4(c) and California Rule 8.4. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, statute, or standard mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee was asked whether it is unethical for an attorney to fail to pay a reporter's fees for services provided under a contract, assuming the fees are reasonable and payment is due as a matter of contract law. It concluded that failing to pay is clearly unethical, because society's accepted moral principles include the duty to pay just debts when due, a duty reflected in contract law. It noted that the duty extends to nonattorneys too, but that an attorney's breach is of particular concern because frequent breaches bring the profession into disrepute and can impair other attorneys' access to credit.

The committee then explained that the State Bar Act does not subject attorneys to discipline for all unethical conduct; with exceptions, it disciplines only professional misconduct or conduct otherwise specified. No Rule of Professional Conduct adopted under section 6076 addresses nonpayment of reporter's fees. The provision most closely governing the question is section 6106, which makes the commission of any act involving moral turpitude, dishonesty, or corruption, whether in the attorney's professional relations or otherwise, a cause for disbarment or suspension.

Reading section 6106 against Alkow v. State Bar (1952) (an attorney issuing checks he knew would not be honored), the committee concluded that nonpayment of a reporter's fees would be "dishonest" only if the attorney intended not to pay at the time he contracted for the services. It adopted the reasoning of Massachusetts Bar Opinion No. 74-9, that the crucial consideration is the lawyer's intention when incurring the obligation, which usually must be inferred from circumstances such as lengthy unexplained nonpayment or repeated unexplained nonpayment or unreasonably delayed payment. The committee added two further circumstances supporting an inference of original intent not to pay: failing to advise the reporter in writing, when contracting, that the attorney would not be responsible for payment and later excusing nonpayment on the ground the client is solely responsible (citing Minnesota Opinion No. 7 (1974)); and failing to respond to the reporter's communications about nonpayment.

Common questions

Q: Is it an ethics violation for a California lawyer to stiff a court reporter?

A: The committee concluded that failing to pay a reporter's reasonable contracted fees is unethical. Whether it is disciplinable is a separate question turning on the lawyer's intent.

Q: When does nonpayment of a reporter become disciplinable?

A: Only where the attorney intended not to pay at the time he contracted for the services. The committee tied discipline to the dishonesty provision of Business and Professions Code section 6106 and the lawyer's intent when incurring the obligation.

Q: How is that intent shown?

A: Because intent usually cannot be observed directly, the committee said it may be inferred from circumstances such as lengthy or repeated unexplained nonpayment or unreasonably delayed payment, failure to advise the reporter in writing of nonresponsibility while later blaming the client, and failure to respond to the reporter's communications.

Background and rules framework

The opinion interprets the State Bar Act (Business and Professions Code section 6000 et seq.), noting that sections 6076 and 6077 authorize disciplinary Rules of Professional Conduct, that section 6100 lists causes for discipline, and that section 6106 makes acts of moral turpitude, dishonesty, or corruption a cause for disbarment or suspension. The dishonesty concern is now also reflected in Model Rule 8.4(c) and California Rule 8.4 (conduct involving dishonesty, fraud, deceit, or misrepresentation).

Citations and references

Statutes:

• California Business and Professions Code sections 6000 et seq. (State Bar Act), 6076, 6077, 6100, 6101, and 6106

Cases:

• Alkow v. State Bar (1952) 38 Cal.2d 257
• Tatlow v. State Bar (1936) 5 Cal.2d 520 [55 P.2d 214]

Other opinions cited:

• Massachusetts Bar Association Committee on Professional Ethics Opinion No. 74-9
• Minnesota State Board of Professional Responsibility Opinion No. 7 (1974)

See also

• CA Ethics Op. 1972-30: Requesting a Trial Date a Lawyer Does Not Intend to Keep

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1979-48.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1979-48

ISSUE:

Is it unethical for an attorney to fail to pay reasonable reporter's fees for contracted services?

DIGEST:

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.

AUTHORITIES INTERPRETED:

The State Bar Act (Business and Professions Code section 6000 et seq.).

DISCUSSION

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.