2.2 Conflicts of Interest: Recognizing and Handling Them

A conflict of interest is any relationship, financial stake or loyalty that could influence, or reasonably appear to influence, how you produce the record. The transcriber's only loyalty is to an accurate record. Blueprint topics 10102 and 10103 ask you to describe what counts as a conflict and how to handle one.

What the rules say

FRCP 28(c) Disqualification. A deposition "must not be taken before a person who is any party's relative, employee, or attorney; who is related to or employed by any party's attorney; or who is financially interested in the action." The rule addresses the deposition officer, but courts and agencies apply the same thinking to anyone who makes the record.

The federal certificate. The Guide to Judiciary Policy (§ 520.63.30(b)) gives this certification for a transcriber working from another's notes: "I further certify that I am neither counsel for, related to, nor employed by any of the parties to the action in which this hearing was taken, and further that I am not financially nor otherwise interested in the outcome of the action." Many state and deposition certificates contain similar language, so a CET is often signing a statement that no conflict exists.

NCRA Code. Members must "be alert to situations that are conflicts of interest or that may give the appearance of a conflict of interest. If a conflict or a potential conflict arises, the Member shall disclose that conflict or potential conflict."

AAERT Code. Conduct I.C: "Be alert to situations that may present the possibility of conflicts of interest. Guard against not only the fact, but the appearance of impropriety."

Common conflicts

A conflict does not have to cause actual bias. It is enough that a reasonable person could doubt your neutrality.

How to handle a conflict

1. Identify it early. Read the case information sheet, caption, appearances and witness list before you start. Names you recognize are your first warning.
2. Disclose promptly. Tell your agency, the court's transcript coordinator or the ordering attorney, as your role requires. Disclosure should reach all parties, not just the one you know.
3. Decline or withdraw when disqualifying. Family, employment and financial ties covered by FRCP 28(c) are not cured by disclosure. Hand the job back.
4. Let the decision-maker decide borderline cases. For a remote connection (you once went to school with a witness), disclose and follow the instructions of the agency, the court or the parties.
5. Document it. Keep a record of what you disclosed, to whom and what was decided.
6. Never quietly continue. Finishing a job while hiding a conflict is itself an ethical violation, even if the transcript is perfect.

Conflicts that come from how you treat the parties

Some conflicts arise from service arrangements rather than relationships:

• Unequal service. Offering rough drafts, faster delivery or better pricing to one side but not the other. NCRA's first provision says to "always offer to provide comparable services to all parties."
• Gifts and incentives. Anything offered in exchange for future work is prohibited under NCRA's Code, and AAERT bars gifts of substance.
• Relationships with a single client. Heavy reliance on one law firm is common and not unethical by itself, but it raises the stakes of any favor that firm asks.

Practice scenarios

1. Halfway through a transcript, you hear the plaintiff's attorney introduce herself; she is your former business partner and you still share a rental property. That is a financial relationship with a party's attorney. Stop, disclose it to the agency, and expect to be replaced.
2. A hearing involves a corporation whose retirement fund you hold through a broad index fund. That is a remote interest. Disclose it if you are unsure, and let the agency or court decide.
3. A witness is your neighbor, whom you know only to wave to. That is a minor acquaintance, not a disqualification. Many agencies still want to know. Disclosure costs nothing.