When approaching a case wherein expert witnesses may be of use, or even required, attorneys should proceed with caution. There are many ethical considerations that must be addressed when locating, retaining, and dealing with experts. For the purposes of this article, the Model Rules of Professional Conduct are referenced with the awareness that different states may differ in their positions on certain issues.
Preliminary Contact with Experts
As a starting point, you will need to locate an expert witness that suits your needs. Often, lawyers know they need an expert, but they may not have a good sense of the type of expert they need. Consider, for example, a breach of contract case, wherein the parties had a teaming agreement, with Party A receiving 51 % of the work under the contract, and Party B receiving 49 % of the work under the contract. Imagine Party A wrongfully terminates the teaming agreement, and the question is, “What are the damages for losing out on 49 % of the work under the contract?” Do you need an accountant? A forensic accountant? One familiar with the particular industry involved? Sometimes these questions can be answered after a discussion with a colleague. However, this is often clarified when speaking with a potential expert who may not be right for your case but might have some referral suggestions.
The potential ethical issue during preliminary contact with experts comes in discussing your client’s case with a potential expert. Rule 1.6 of the American Bar Association’s (ABA) Model Rules states, “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation,” or in circumstances detailed in subsection (b) of the rule, which do not have application here. But even in the preliminary stages of the expert witness search process, you will have to give potential experts some idea about what the case involves in order to determine whether they are an adequate fit.
While you may be comfortable arguing to the Board of Professional Responsibility the disclosure was impliedly authorized, a safer approach is to discuss with your client your intention to disclose some facts and circumstances of their case, starting with, but not limited to, the fact that you are, indeed, representing them. While legal representation is public record in most filed cases, many times, an expert must be consulted prior to the case filing. A short conversation about the purpose of the disclosure, and the extent of same, is a good idea.
Detailing the Nature of the Fee
Fees should be discussed up front, and be used to compensate the expert for their time, knowledge, and experience — not for their opinion. Any expert who suggests you may purchase a favorable opinion should be avoided. Further, although testifying expert witnesses may be paid hourly, with a flat fee, or with a combination of both, they may not be offered a contingency fee for their participation.
ABA Model Rule 3.4 provides “A lawyer shall not: (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.” The comments to the rule address expert witnesses, and states, in part, “The common law rule in most jurisdictions is that it is improper to pay . . . an expert witness a contingent fee.” Instead, experts should be paid “reasonable fees” for their services. Couching payment in terms of the success of the action may improperly incentivize or induce a witness to provide overly favorable, and potentially false, testimony.
Omitting or Coloring the Evidence
Sometimes, an attorney may feel the urge to omit certain evidence they deem unfavorable to their case. Other times, they may decide to offer a slightly sanitized or altered version of facts they know to be true. Omitting evidence or altering the facts in an attempt to obtain a more favorable opinion are universally bad ideas. First, an experienced attorney on the other side will almost always discover these acts. Second, failure to provide complete disclosures could result in a different opinion from the expert. This is particularly important because lawyers may fail to appreciate the significance of one piece of evidence or another, and such a failure to disclose, or disclose completely, could be detrimental to their client. Even more important, perhaps, is that such failures are unethical.
ABA Rule 4.1 states, in relevant part, “A lawyer shall not knowingly (a) make a false statement of material fact or law to a third person. . .” Obviously, coloring the evidence would be a false statement. However, failure to provide complete disclosure, while representing you have disclosed the relevant universe of information may also be considered “making a false statement of material fact.”
Modifying Expert Reports
It should go without saying that under no circumstances should an attorney modify an expert report before disclosing it. The expert will no doubt discover this alteration at some point and may refuse to work with you further. More often, however, attorneys find themselves reviewing expert opinions and wondering if, perhaps, an expert may be willing to omit a phrase or alter a word in their report. If, for example, an attorney discovers a misstatement of fact regarding the evidence, there is no issue with asking the expert to review the discovery provided to confirm their understanding of the facts. However, requests solely motivated by a desire to make a report appear more favorable should be avoided.
ABA Rule 8.4 affirmatively states “It is professional misconduct for a lawyer to (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” (emphasis added). Any time an attorney finds themselves considering engaging in a conversation with the intent of minimizing certain facts or opinions, an attorney should reconsider.
When Working with Experts
When working with experts, attorneys should exercise extreme caution. While it is natural for an attorney advocate to desire to put forth their case in the best light possible, an attorney should resist any shading of the truth. Attorneys should always be mindful of their client’s privacy rights and take care to compensate their experts ethically.