17.1 Essential COPE Advisory Opinions
Key Takeaways
- Public Advisory Opinions explain how COPE applies the Code to recurring facts, are subject to Board review, and yield to inconsistent controlling federal, state, or local authority.
- Advisory Opinions 22, 28, and 48 explain notification and comparable access when transcript orders or new services are placed.
- Advisory Opinion 38 says backup audio need not be released absent a court order; if a reporter elects to provide it, all parties receive a comparable offer and the original is preserved.
- Advisory Opinions 45 and 46 apply the $150 annual aggregate gift ceiling and the absolute ban on value offered for future work.
17.1 Essential COPE Advisory Opinions
Quick Summary: Public Advisory Opinions apply the ten Code Provisions to recurring professional situations. They are valuable because they show COPE's reasoning, but their numbers and holdings must be learned accurately. The published opinions also caution reporters to follow them only to the extent they are consistent with controlling federal, state, and local law, rules, and regulations.
How Advisory Opinions Work
NCRA members in good standing may request a private advisory opinion for guidance. COPE may also recommend a public opinion, often using assumed facts or anonymized facts from a private request. The Board may adopt, modify, or reject a private or public opinion. An Advisory Opinion is not a substitute for checking a statute, court order, licensing rule, or local practice.
On the RPR, use opinions as applications of the Code:
- Provision 1: fairness, impartiality, and comparable services.
- Provisions 2 and 3: conflicts and actual or apparent impropriety.
- Provision 4: confidentiality and security.
- Provision 5: truthful public statements.
- Provision 9: integrity of the profession.
Orders, Excerpts, and Equal Availability
Advisory Opinion 22 concerns a request for excerpted testimony. It concludes that all parties should be notified when an order is placed and that comparable excerpts should be made available. The reporter does not secretly deliver a strategically selected excerpt to one side.
Advisory Opinion 28 addresses a later transcript order opposed by the taking attorney. It says the reporter should prepare the requested official record, notify all parties, and make the record equally available rather than treat the taking attorney as having unilateral ownership of the deposition.
Advisory Opinion 48 adds an important limit. If all parties were notified when the transcript was first ordered and another party later orders only a copy of that same service, a new notice ordinarily is not required. If the later order is for a new service—for example, the full transcript after only an excerpt was previously ordered—the reporter should make a good-faith effort to notify all other parties. The tested distinction is repeat copy versus materially new service.
Advisory Opinion 15 protects neutral distribution and review. A reporter should not submit transcripts, exhibits, or videos to one ordering lawyer or an affiliated management firm for advance review before offering submission to all ordering parties. Applicable custody, filing, confidentiality, and certification law still controls.
Backup Audio: Advisory Opinion 38
A reporter's discretionary backup audio assists transcript preparation and is not the official record. Advisory Opinion 38 concludes:
- Absent a court order, the Code does not require the reporter to provide a copy.
- If the reporter elects to provide one party a copy, the reporter must offer a copy to all parties under Provision 1.
- The reporter preserves the original and provides only a copy, unless ordered to provide the original; if the original is ordered produced, the reporter keeps a copy.
- Before release, protect off-the-record, privileged, or confidential material.
- Recording and release remain subject to applicable law and rules.
Therefore, two absolutes are wrong: an attorney does not own the backup merely because that party paid, and the Code does not say release is forbidden unless every party signs a consent. The reporter may request that the party obtain a court order and must apply the governing authority.
Gifts: Advisory Opinions 45 and 46
Advisory Opinion 45 explains Provision 8. Marketing and thank-you gifts that do not exceed $150 in aggregate value per recipient per year may be nominal, but nothing offered in exchange for future work is permissible regardless of value. Pro bono service remains permissible as defined by guidance or applicable law.
Advisory Opinion 46 provides further implementation guidance. Among its details, items worth less than $10 need not be counted toward the aggregate, but splitting or relabeling an incentive does not cure a future-work exchange. The recipient group includes lawyers and their staff, clients and their staff, and others associated with litigation.
Exam Method
Match the facts to the opinion before relying on a number. Ask: Was an order placed? Is it a copy or a new service? Is material being sent to one side for advance review? Is audio the official record or a backup? Is a gift a thank-you item or consideration for future work? Then apply the relevant Code Provision and verify whether a local authority changes the procedure.
After all parties were notified of the original full-transcript order, another party later orders only a copy of that same transcript. What does Advisory Opinion 48 indicate?
A reporter voluntarily decides to provide backup audio to one party. What follows from Advisory Opinion 38?
Which gift follows NCRA's current numerical rule if it is an ordinary thank-you and not offered for future work?