16.1 COPE Mandatory Principles: Neutrality & Impartiality

16.1 COPE Mandatory Principles: Neutrality & Impartiality

Quick Summary: NCRA's Code of Professional Ethics is organized as ten numbered Provisions, not canons. Provisions 1 through 3 form the neutrality core: be fair and impartial, always offer comparable services to all parties in a proceeding, remain alert to conflicts and disclose any conflict or potential conflict, and guard against both actual impropriety and its appearance. The ethical duty is constant, but the procedural response to a conflict depends on the law and rules governing the assignment.

Code, Guidelines, and Jurisdiction

The Code governs NCRA members and individuals certified by NCRA through the association's complaint process. The separate Guidelines for Professional Practice provide best-practice guidance. Neither source displaces a statute, court rule, licensing rule, judicial order, or valid procedural agreement. On an RPR question, first identify the ethical principle, then ask which authority controls the procedure.

The three foundational Provisions are:

1. Fairness, impartiality, and comparable services. The reporter treats every participant fairly in every aspect of the reported proceeding and always offers comparable services to all parties. A hiring relationship does not turn the reporter into the hiring lawyer's advocate.
2. Conflicts and disclosure. The reporter stays alert to an actual conflict, a potential conflict, and circumstances that may look like a conflict, and discloses a conflict or potential conflict.
3. Impropriety and its appearance. Professional judgment must protect public confidence as well as prevent actual favoritism.

Comparable services does not mean that every participant must order a copy, use realtime, or select the same delivery speed. It means that a reporter does not secretly reserve a reporting service for one side. Offer the relevant service fairly, communicate the terms, and follow any rate or distribution rule that applies.

Conflict Analysis

A conflict can arise from a personal relationship, employment relationship, financial interest, prior participation in the matter, or another circumstance reasonably calling neutrality into question. Use a disciplined sequence:

1. Identify the people and entities involved before the proceeding.
2. Determine whether the connection is actual, potential, or creates an appearance concern.
3. Disclose it promptly to the appropriate people rather than deciding privately that it is harmless.
4. Check the applicable law, rule, order, and employer or agency procedure.
5. Decline, withdraw, or proceed only as that authority permits; preserve the record of the resolution in the manner the authority requires.

The Code requires disclosure, but it does not make one universal script or demand that every disclosure always be spoken on the record. Notice may need to go through a judge, clerk, agency, or all counsel before the proceeding. A reporter must not invent a private waiver where a rule makes the disqualification mandatory, and must not declare a conflict nonwaivable where the controlling authority supplies a waiver mechanism.

Federal Depositions: Rules 28(c) and 32(d)(2)

For a deposition governed by the Federal Rules of Civil Procedure, Rule 28(c) says the deposition must not be taken before a person who is a party's relative, employee, or attorney; who is related to or employed by a party's attorney; or who is financially interested in the action. This is a qualification rule for the deposition officer, not a universal definition for every court or administrative proceeding.

Rule 32(d)(2) separately provides that an objection based on disqualification of the officer is waived if it is not made before the deposition begins or promptly after the basis could be known or discovered with reasonable diligence. That procedural waiver does not erase the reporter's ethical obligation to disclose a conflict or potential conflict. The correct exam approach is to recognize both rules instead of converting Rule 28(c) into a blanket statement that every possible conflict is forever nonwaivable.

Neutral Conduct During the Proceeding

Neutrality is visible in ordinary choices. The reporter captures the proceeding accurately; does not coach a witness; does not offer legal advice; does not characterize a witness as truthful or deceptive; and does not privately change testimony for a party. When counsel dispute whether to continue, strike testimony, mark an exhibit, or go off the record, the reporter does not adjudicate. In court, follow the judge and controlling courtroom procedure. In a deposition, preserve the disputed colloquy and follow the applicable rule, stipulation, or lawful direction rather than treating one lawyer as the reporter's client-commander.

A calm demeanor helps, but neutrality is not emotional blankness. A reporter may interrupt to protect the record when speakers overlap, a name is unclear, or testimony cannot be heard. The intervention should be evenhanded and limited to record-making, not advocacy. Accuracy, disclosure, comparable service, and role discipline are the repeatable RPR principles.