‘Tis The Season to Give… Or Is it?

Gift giving. Wasn’t life easier when you could give and accept gifts without any repercussions? Remember when you could say “Thank You for your business” with a small gift and no one questioned the reason behind the gift? Well, that was then and this is now. Those days are gone, sadly forever. Gifts and the legal profession do NOT get along, so don’t even go there.

You’ve seen it – someone makes an offer of a gift or gas card to choose their agency over a competitor’s agency to use for their deposition. It’s been known to happen frequently. Did you ever stop and wonder who actually got the gift card? Was it the scheduling secretary? The attorney? It really doesn’t matter who ended up with the gift. It’s the fact that a gift was accepted that presents the long-range problem. And remember, gifts can be anything – from a gift card, to tickets to an event or meals or even a nice pen… anything.

Think of it this way: What’s the difference between gifts and bribes? A gift is something you give because you want to and you don’t expect anything in return. A bribe is the same thing except there is an underlying hope on the giver’s part that the gift will influence or benefit someone. The line between them is really thin and easily misconstrued. And how can the thought behind the gift be proven?

It can be impossible to tell them apart and the rules differ for all types of businesses. In some industries, gifts are allowed if the value remains below a specified limit. In other cases, the value is not important so long as the gift is reported. And in other cases, they are not allowed at all.  It is critically important that you know not only your state’s rules on the subject, but also your association or firm’s rules.

Remember the old saying “There’s no such thing as a free lunch”? It’s true, especially these days when any excuse to find fault or point a finger is being utilized to sway the outcome of a proceeding. According to the National Court Reporters Association (NCRA), “The giving of gifts by reporters to attorneys has been a hot topic for reporters for years. NCRA first tackled these questions in 1993 when it amended the Code of Professional Ethics to include, as Provision 8, language prohibiting ‘…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…’ The Association held that the practice of giving valuable items to attorneys, their staffs, or their clients undermined the integrity of the reporting profession by raising questions about reporters’ neutrality.”

It goes on to state that “Last March, in response to member requests, the Board of Directors asked the Committee on Professional Ethics to consider these matters and determine if Provision 8 is still relevant. Following extensive discussion at the Committee and Board levels, NCRA has issued a new COPE advisory opinion, No. 45, to provide additional guidance on the subject of gift giving. Although the $100 limit remains in place, this new document provides additional clarity to this longstanding policy.”

These codes and issues exist to protect the reporter and the lawyer in regards to the costs for the case. For instance, if an attorney turns in a $100 bill for his use of a court reporter, and he has received a gift card for $10, then in reality he can only turn in a request for reimbursement of $90 for the reporter. If he submits documentation for $100, he is in reality lying and can be held liable.

All of this is literally a question of ethics. We are officers of the court and our job is no less important than the attorney or the judge – we all have to be fair, impartial and held to the highest degree of ethics. Decisions need to be made on the points presented, not on the receipt of a gift. And remember, even if the recipient of a gift isn’t influenced by it, the mere fact that they accepted a gift opens up the question of the validity of their choice even if it isn’t true. And unfortunately we see it happening all too frequently.

The bottom line is that your actions may affect all parties involved in litigation. It’s just not worth the risk.

Next we’ll go into more detail about “Ethics First”.

Advertisements
This entry was posted in Need to Know. Bookmark the permalink.