Look a Gifthorse in the Mouth: The Pitfalls to Gifting and Ethical Obligations

[Lisa Migliore Black]

The advice given in the “Don't look a gifthorse in the mouth” proverb is, when given a
present, be grateful for your good fortune and don't look further to assess its value. This
may not be sound advice in our legal arena.

Gifts and incentives designed to influence your decision on which firm to use for court
reporting work are coming in all forms. You might wonder why your court reporter
doesn't offer such incentives. The answer is simple: According to the state and national
court reporting associations and the Kentucky Bar Association, Rules of the Supreme Court of Kentucky, such practices can be considered unethical, depending on the value of the gifts and the terms under which
they are being offered.

The KyCRA Code of Ethics state that court reporters must, "Refrain from giving, directly
or indirectly, any gift, incentive, reward or anything of value to attorneys, clients,
witnesses, insurance companies or any other persons or entities associated with the
litigation, or to the representatives or agents of any of the foregoing, except for items
that do not exceed $100 in the aggregate per recipient each year." This bylaw protects
us from the appearance of impropriety. Justice simply can't be sold to the court
reporter with the highest reward, incentive, or kickback for the work.

What's more, since the parties to the case are the ones who are ultimately paying the
bills associated with such incentives received by attorneys and their staff, litigants
are funding the bill for some vendors' marketing strategies. Whether a violation of our
rules as court reporters or the rules governing attorneys, these practices can be
detrimental for all involved.

Additionally, you should test how the gifting practices of your firm’s vendors (including
court reporters) applies to the Kentucky Bar Association Rules of the Supreme Court of
Kentucky, Practice of Law, SCR 3.130(1.8) Conflict of Interest: A lawyer shall not accept
compensation for representing a client from one other than the client unless such
compensation is in accordance with an agreement between the client and the third
party or the client consents after consultation."

While non-lawyers are not subject to professional discipline, the lawyer for whom
they work is responsible for ensuring that their conduct is compatible with their
professional obligations.

In summary, examine how your actions may affect all parties involved in litigation:
attorneys and their staff and court reporters. We all need to work together to uphold the
integrity of our court records.

*Written for distribution in Kentucky to attorneys and staff.