Can a law firm employ a court reporter full time, use that reporter in its own litigation, and contract the reporter's services out to other lawyers?

Plain-English summary

Opinion E-86-19 considered a law firm's proposal to employ a court reporter as a full-time staff member, using the reporter in litigation in which the firm is involved and also allowing the reporter to perform court reporting services for other lawyers, with the firm paying the reporter a salary while other lawyers pay the firm directly for the reporter's services. The proposal did not contemplate the reporter providing any services for anyone holding judicial office. The question was whether any professional ethics rules or considerations preclude or restrict this arrangement.

The committee answered that it was unaware of any ethical rules or considerations that per se preclude the full-time employment of a court reporter by a law firm for use in the firm's litigation, or the contracting out of that employee's services to other lawyers. It pointed to the considerations generally applicable to nonlawyer employees, citing the former Code provisions on division of fees with a nonlawyer (SCR 20.19), partnership with a nonlawyer (SCR 20.20), and selection and training of nonlawyers (SCR 20.21(2)), along with its earlier Formal Opinion E-86-13 and ABA Model Rule 5.3 on responsibilities regarding nonlawyer assistants.

The committee added that whether any legal impediment precludes a law firm from using a court reporter it employs in litigation in which the firm is involved was not a question the committee was authorized to address, pointing generally to Wis. Stat. section 804.03(3).

Currency note

This opinion was issued in 1986, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. The rules on nonlawyer assistants and fee division are now SCR 20:5.3 and SCR 20:5.4 / Model Rules 5.3 and 5.4. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Can a firm have a court reporter on staff and use that reporter in its own cases?

A: The committee concluded it was unaware of any ethics rule that per se precludes a firm from employing a court reporter full time for use in the firm's litigation.

Q: Can the firm rent the staff reporter's services to other lawyers?

A: Per the opinion, yes; the committee found no per se ethical bar to contracting the employee's services out to other lawyers, subject to the general nonlawyer-employee rules.

Q: Did the committee address whether using a firm-employed reporter in the firm's own case is otherwise lawful?

A: No; the committee stated that whether a separate legal impediment limits that use was not a question it was authorized to address, pointing to Wis. Stat. section 804.03(3).

Background and rules framework

The opinion interpreted the former Code provisions governing nonlawyer employees, division of fees with nonlawyers, and supervision (SCR 20.19, 20.20, 20.21(2)), the area now governed by SCR 20:5.3 and 20:5.4 / Model Rules 5.3 and 5.4, alongside ABA Model Rule 5.3.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.19, 20.20, 20.21(2) / Model Rules 5.3, 5.4 (nonlawyer employees; fee division; partnership; supervision)
• ABA Model Rule 5.3 (responsibilities regarding nonlawyer assistants)

Statutes:

• Wis. Stat. section 804.03(3) (depositions; persons before whom taken)

Other opinions cited:

• Wisconsin Formal Op. E-86-13

See also

• WI Ethics Op. E-88-8: Fee Sharing With a Lawyer Referral Service
• WI Ethics Op. E-87-7: For-Profit Lawyer Referral Services

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-86-19.pdf