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The Florida Bar
www.floridabar.org
PROFESSIONAL ETHICS OF THE FLORIDA BAR
OPINION 65-43
July 30, 1965

A lawyer may allow a newspaper reporter to inspect the lawyer's copy of a deposition taken in a civil suit of considerable public interest if the deposition is available for public inspection in the court clerk's office, if the reporter, not the lawyer, instigated the inquiry, and if the lawyer refrains from improper discussion of pending litigation.

Note: The trial publicity rule was amended subsequent to Gentile v. State Bar of Nevada, 501 U.S. 1047, 111 S.Ct. 2720, 115 L.Ed 2d 888 (1991).

Canons: 20, 27

Chairman Kittleson stated the opinion of the committee:

A member of The Florida Bar requested the Committee's opinion on a civil suit of considerable public interest. The officer before whom the deposition was taken filed the transcript in the prescribed manner. A newspaper reporter, in a routine check of court house events, noted the filing of the deposition. The reporter has requested one of the attorneys in the suit to allow the reporter to see the attorney's copy of the transcript. The reporter has stated no specific purpose. The inquiry is whether the attorney may ethically allow the reporter access to the deposition.

The Committee assumes that this inquiry falls within the policy prescribed by the Board of Governors to the effect that the standing committee on professional ethics should render an opinion only on inquiries dealing with the proposed future conduct of the inquirer.

If the deposition is available for public inspection in the office of the clerk of the circuit court, the Committee sees no ethical objection to the attorney's allowing a newspaper reporter access to his copy of the deposition. This presupposes that the newspaper reporter, not the attorney, instigated the inquiry, and that the attorney complies with Canon 20. In other words, the attorney may do the reporter a courtesy but he may not seek publicity in violation of Canon 27, and, as required by Canon 20, he should refrain from newspaper discussion of pending litigation.

If the deposition is not available for public inspection in the clerk's office, then the Committee questions the propriety of an attorney's making his copy of the deposition available to a newspaper reporter.

Rule 1.24 provides that the officer taking the deposition shall seal the deposition before filing it with the court. Rule 1.33 provides that the deposition may be opened and examined by any party in the presence of the clerk. Some counties and circuits, however, have local court rules dealing with the clerk's responsibilities for opening and keeping the depositions. This may be pertinent on the question of when the deposition becomes available for public inspection as part of the court file.

[Revised: 08-24-2011]