For example, in commercial cases, trade secrets or other confidential information may be pertinent to disputed issues; in cases involving personal injuries or illness, your client may wish to preserve as much medical privacy as possible. Some clients, especially lawyers and other professionals, can be anxious about disseminating the fact that they are involved in a lawsuit, even though it is public record. Accordingly, it is often worthwhile to discuss with your client, at the outset of an expert search, the parameters of what information can or should be revealed to potential experts when interviewing them and checking conflicts, and whether and when nondisclosure agreements should be proposed or obtained.
When negotiating with potential expert witnesses, one must of course be careful to avoid hinting that the expert's fee might vary depending on the opinions reached, or on the eventual outcome of the litigation. Several states directly prohibit such offers as unethical. See, e.g., Cal. Rules of Prof'l Conduct R. 5-310 ("A [lawyer] shall not . . . [d]irectly or indirectly pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness's testimony or the outcome of the case."); N.Y. Rules of Prof'l Conduct R. 3.4(b). The ABA Model Rules of Professional Conduct prohibit such offers where "prohibited by law." ABA Model Rule 3.4(b). Further, even in jurisdictions where contingent expert fees are permissible, contingent compensation arrangements are likely to impact the credibility of the expert, and may provide a basis to exclude the expert's testimony entirely. See, e.g., Taylor v. Cottrell, No. 4:09CV536, 2014 WL 414325 (E.D. Mo. Feb. 4, 2014) (excluding medical opinion testimony where evidence of contingent payment existed). But see Tagatz v. Marquette Univ., 861 F.2d 1040, 1042 (7th Cir. 1988) ("[Although it] is unethical for a lawyer to employ an expert witness on a contingent-fee basis, . . . it does not follow that evidence obtained in violation of the rule is inadmissible.").
Expert Review of Case Materials
Once an expert is engaged, confidentiality issues should again be carefully considered. Providing confidential information to an outside expert may violate not only the client confidences learned during the attorney-client relationship, but may also infringe on third parties' privacy rights. Many disclosures of personally identifiable medical information are governed by HIPAA. See 45 C.F.R. §§ 164.502, 164.514 (requiring that "covered entities" under HIPAA make reasonable efforts to limit the use and disclosure of protected health information in the course of litigation). Before sharing such information with an independent expert, a HIPAA-compliant protective order should be considered. Similarly, many disclosures of nonparties' personally identifiable financial information are governed by the Fair Credit Reporting Act, the Fair and Accurate Credit Transactions Act, the Privacy Act of 1974, and/or state privacy laws. Regardless of counsel's potential liability for damages under these laws if a privacy violation occurs, "[a] lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client." ABA Model Rule 1.6(c).
Most jurisdictions recognize the duty of expert witnesses to maintain the confidentiality of information learned during the engagement. See, e.g., Wang Labs., Inc. v. Toshiba Corp., 762 F. Supp. 1246, 1249 (E.D. Va. 1991) (finding expert was bound by duty of confidentiality regarding attorney work product where "[n]o experienced litigator would freely disclose these materials to opposing counsel"); Mitchell v. Wilmore, 981 P.2d 172, 176 (Colo. 1999) (noting that regardless of the opinions eventually reached by an expert witness, "the consulting relationship remained important—as did [counsel's] objectively reasonable belief that their relationship with [the expert] was a confidential one and that the matters discussed would remain inviolate"). This can sometimes prevent the expert from testifying in later matters where the confidences might be relevant. See, e.g., Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271, 279–80 (S.D. Ohio 1988) ("[T]he nature of the communications between an attorney and an expert, and the extent to which both parties appreciate the significance or confidentiality of those communications, . . . is the crucial focus of the court's inquiry into whether the expert should later be disqualified from serving on behalf of the other party."); cf. Formosa Plastics Corp., USA v. Kajima Int'l, Inc., 216 S.W.3d 436, 452 (Tex. App. 2006) (recognizing that "preventing gamesmanship, whereby parties create conflicts solely for the purposes of preventing their adversary from using the services of the expert, outweigh[s] the policy of preventing conflicts"). However, because nonlawyer experts lack legal training, the expert "is not responsible for deciding what information is no longer privileged and whether any information remains privileged." Crenshaw v. MONY Life Ins. Co., 318 F. Supp. 2d 1015, 1027 (S.D. Cal. 2004).
Accordingly, counsel should consider the use of appropriate protective orders or written confidentiality agreements in order to comply with ethical duties of confidentiality and with the privacy rights of third parties. As several courts have stated, "Lawyers bear a burden to make clear to consultants that retention and a confidential relationship are desired and intended." State ex rel. Billups v. Clawges, 620 S.E.2d 162, 168 (2005) (quoting Wang Labs., 762 F. Supp. at 1248).
Communications with and Between Engaged Experts
Most jurisdictions' civil rules draw a distinction between "consulting" and "testifying" experts. Compare Fed. R. Civ. P. 26(b)(4)(A), with Fed. R. Civ. P. 26(b)(4)(D); compare also Fla. R. Civ. P. 1.280(b)(5)(A), with Fla. R. Civ. P. 1.280(b)(5)(B). In such jurisdictions, counsel's communications with testifying experts will generally be discoverable, while communications with consulting experts will only be discoverable under "exceptional circumstances." However, some jurisdictions protect only the opinions of consulting experts, and permit discovery of their identity and other nonopinion information. Compare Baki v. B.F. Diamond Constr. Co., 71 F.R.D. 179 (D. Md. 1976), with Ager v. Jane C. Stormont Hosp. & Training Sch. for Nurses, 622 F.2d 496, 503 (10th Cir. 1980). For a fairly recent discussion of conflicting authorities, see In re Welding Fume Products Liability Litigation, 534 F. Supp. 2d 761, 766–72 (N.D. Ohio 2008).
Again, counsel should be cautious in communicating client confidences to either category of experts; it is also advisable that counsel prohibit—or at least participate in—any communications between consulting and testifying experts on the same case, in order to maintain and enforce appropriate confidentiality standards.
Preparation of Written Expert Reports
Counsel should avoid inappropriate participation in the expert's preparation of a written report. Reports that are fairly characterized as "ghostwritten" by counsel can lead to ethical sanctions, see, e.g., Occulto v. Adamar of N.J., Inc., 125 F.R.D. 611 (D.N.J. 1989) (describing attorney's "writing of a medical expert's report" as "attorney misconduct undermining the integrity of [the truth-finding] process"), as well as profound effects on the related litigation. See, e.g., Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245–46 (1944) (vacating judgment resulting from ghostwritten expert report as "fraud on the court"), overruled in part on other grounds by Standard Oil Co. of Cal. v. United States, 429 U.S. 17 (1976); Marek v. Moore, 171 F.R.D. 298, 302 (D. Kan. 1997) (sanctioning counsel for failure to produce signed expert report, where evidence demonstrated likelihood of "undue influence" by counsel). But see Trigon Ins. Co. v. United States, 204 F.R.D. 277 (E.D. Va. 2001) (declining to strike expert reports absent evidence that counsel "provided the substance of the opinions of the testifying experts").
Accordingly, counsel should be cautious when assisting experts with their reports; despite the current trend toward greater protection of attorney work product in the context of assistance of and by experts, few courts will ignore properly supported allegations of improper assistance and/or interference with the preparation of expert reports.
Communications with Adverse Experts
Although the ABA Model Rules do not expressly prohibit contact with adverse expert witnesses, a 1993 ABA ethics opinion derived such a ban from ABA Model Rule 3.4(c), which makes it unethical for a lawyer to "knowingly disobey an obligation under the rules of a tribunal," and the then-current civil rules governing discovery. See ABA Comm. on Ethics & Prof. Responsibility, Formal Op. 93-378. Although Federal Rule of Civil Procedure 26 was amended later that same year, commentators have generally opined that the per se ban on contact with adverse experts remains in place. See, e.g., Geoffrey C. Hazard Jr. & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 3:4:402, at 637–38 (2d ed. Supp. 1998). But see Or. State Bar Ass'n Bd. of Governors, Formal Op. 1998-154 (1998) (concluding no ban under Oregon rules); Phila. Bar Ass'n Prof'l Guidance Comm., Ethics Op. 94-22 (1995) (same).
Further, counsel should be cautious in engaging adverse expert witnesses as friendly experts in other matters, even where they appear unrelated; ethical problems may arise from the appearance of attempting to influence the expert's opinions. In one case, counsel who engaged an adverse expert in one matter shortly before his deposition in a second matter was sanctioned. Erickson v. Newmar Corp., 87 F.3d 298, 300–01 (9th Cir. 1996).
Further, adverse experts, like all adverse witnesses, are entitled to the protections of ABA Model Rule 4.4, Respect for Rights of Third Persons. This Rule states in subsection (a): "In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person." In conducting informal and formal discovery, counsel should be mindful to avoid unnecessary burden or embarrassment of adverse experts, especially in jurisdictions that have adopted this Rule.
Working with expert witnesses is fraught with ethical pitfalls. What might appear to be a simple process—locating the best available expert, supplying him or her with available information related to the disputed issues, and obtaining necessary reports and testimony—in fact touches on a wide variety of ethical duties. Counsel would be wise to consider each step in this process carefully, to avoid unethical conduct.
Keywords: litigation, commercial, business, expert witnesses, ethics, confidentiality, privacy rights, discovery, Model Rule 1.6, Model Rule 3.4, Model Rule 4.3, Model Rule 4.4