‘I Forgot My Checkbook’

Few excuses relinquish your responsibility to pay court reporters, expert witnesses and process servers.

By JAMES CARLSON

Winter 2014

When an attorney showed up for a deposition of his physician expert in 1987, he offered a curious excuse for not paying the doctor: He’d forgotten his checkbook. (The attorney apparently misplaced his checkbook for months afterward as well, as subsequent attempts to collect were met with silence.) The courts did not look kindly on the attorney and found that his actions violated the rules of the time.

The rules may have changed since that incident, and so have attorneys’ arguments for not paying court service providers. (Often, the attorney blames an unpaying client.) The legal conclusions, however, have not changed: Absent a specific agreement to the contrary, the onus for payment of service providers is on the attorney.

The problem may not be an epidemic, but it’s far from insignificant. In just the first month of 2015, the Office of Attorney Regulation Counsel received 10 complaints of such behavior. If you’re looking to avoid any confusion, there are two practices you can employ:

1.      Collect payment from your client before you contract for any such services, or;

2.      Draft a contract for the service provider that explicitly states that the client will pay

(The second option might appeal to a lawyer, but it’s unlikely to be favored by court reporters and is not the best recommended practice.)

Why is failure to pay court reporters, expert witnesses and process servers a rule violation? Modern-day cases are grounded in Colorado Rule of Professional Conduct 8.4(d), which states, “It is professional misconduct to … engage in conduct that is prejudicial to the administration of justice.” The rationale is simple: If service providers can’t rely on an attorney’s word for payment, they’ll be reluctant to provide services to future attorneys, and the system will grind ever slower.

Most recent cases involving nonpayment of service providers come in a wider case of attorney misconduct. The 2007 case People v. Eamick, however, isolated the issue of nonpayment and is therefore educational.

Attorney Dennis Eamick engaged a court reporter to produce a transcript for his client’s civil case. He didn’t tell the court reporter that he didn’t believe he was responsible for payment and did not disclose that his client was likely unable to pay. The court reporter produced the transcript and Eamick never paid.

Before the Presiding Disciplinary Judge and the hearing panel, Eamick defended his actions with two arguments. In his first argument, he cited CRCP 1.8(e): “… a lawyer shall not advance or guarantee financial assistance to the lawyer’s client except expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses.”

The hearing panel waved this off, saying that the court reporter relied on a well-established custom of attorneys paying for her services. “Such conduct,” the panel wrote, “is prejudicial to the effective administration of justice and diminishes the ability of other attorneys to easily and economically obtain court reporter cooperation and assistance in obtaining transcripts.”

Eamick’s second argument was that divulging to the court reporter that his client was unable to pay would have violated his duty of confidentiality. The panel called this argument “misplaced” and said all attorneys have a duty to act honestly with others, “especially those so closely associated with the judicial process.”

There are limitations to this application of 8.4(d). There has to be a concerted effort to obtain payment first. The Office of Attorney Regulation Counsel does not act as a collections agency. Also, a genuine dispute over the content of the bill or the contracting of services does not fall under Attorney Regulation’s domain.

Finally, early hearing board decisions state that a violation of 8.4(d) requires a “nexus” between the conduct and the adverse effect on the administration of justice. Not paying a court reporter fits that bill. Not paying your tailor, however, probably isn’t a rule violation. (Though bringing your checkbook is still common courtesy.)

James Carlson is the Information Resources Coordinator for the Office of Attorney Regulation Counsel.