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The Ethics of “Conflicting Out” Experts and Lawyers

Wed, 05/25/2016 - 10:41 -- admin25

by Prof. Fred C. Moss

Lawyer A hires an expert for a client’s case and then discusses the case with other experts on the pretext that Lawyer A is considering whether to retain them. Actually, Lawyer A’s only purpose is to ensure his client’s adversary cannot hire them.

Husband hires Lawyer B to handle his divorce. Husband’s spouse has no lawyer yet. Lawyer B instructs Husband to discuss the case with Lawyers C and D, two of the best divorce lawyers in town, on the pretext of possibly retaining them. The client does so.

Have these lawyers acted unethically? Yes.

Texas Disciplinary Rule of Professional Conduct 8.04(a)(3) prohibits a lawyer from engaging in “dishonesty, fraud, deceit or misrepresentation.” In “neutralizing” the experts, Lawyer A has lied with the intent to deceive. Lawyer B has done the same via Rule 8.04(a)(1), which prohibits violating ethics rules “through the acts of another.” See In re Ositis, 40 P.3d 500 (Or. 2002) (unethical for a lawyer to permit his investigator to misrepresent himself as a journalist).  

Some may argue that these deceptions are just part of the “litigation game” and “everyone does it.” But, as we teach our children, “everyone does it” doesn’t make it right. These deceptions reduce the supply of available experts and attorneys for nothing more than a tactical advantage. Rule 8.04(a)(3) does not require the misrepresentation to be “material.” Eureste v. C.L.D., 76 S.W.3d 184 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

Courts have disapproved of such tactics. In Kenney v. Superior Court, 255 Cal. App. 2d 106, 113 (1967), an attorney recruited local doctors to be on a “medical committee” that would review claims against the lawyer’s med-mal clients. The court noted, “We are aware of possible abuses of the so-called ‘medical committee’ system. Obviously, it is not in the interests of justice to countenance any attempt by defendant or his counsel in a medical malpractice action to ‘corner’ the supply of ‘top-drawer’ medical experts, silencing them as potential plaintiff’s witnesses.” The court observed that “the evils” of this practice are particularly aggravated when plaintiffs must offer expert testimony on the standard of medical practice in that community.

In Shadow Traffic Network v. Superior Court, 24 Cal. App. 2d 1067, 1080 n. 9 (1994), the court commented that “allow[ing] a party to deplete the pool of available experts simply by quickly interviewing all of the available experts, even though it had no intention of retaining them . . . . is a legitimate concern.” The court in Wang Laboratories, Inc. v. Toshiba Corp., 762 F. Supp. 1246 (E.D.Va. 1991), discussed “the impermissible practice of retaining consultants merely to preclude opposing counsel from doing so.” Oregon Ethics Opinion 2005-132, 2005 WL 5679556 (2005), advised, “[A] lawyer cannot misrepresent the identity or motive of the interviewer.” See also Va. Ethics Op. 1738 (2000) (A lawyer may supervise investigations that use “pretexting” methods, but only in otherwise lawful investigations into possible violations of civil or criminal law.)

As for inducing clients to neutralize potential opposing lawyers, New Jersey Ethics Opinion 703 (2006) declared such conduct to be a violation of that state’s rule against conduct prejudicial to the administration of justice.

Moreover, attempts to neutralize opposing lawyers may be ineffective. Authorities indicate that if a party shares confidential information with an attorney solely to create a conflict of interest, the attorney may represent the party’s adversary in the same matter since the confidences were not disclosed in a good faith effort to obtain legal assistance. See, Va. Ethics Opinion 1794 (2004); Kentucky Ethics Opinion KBA E-316 (1987); and Vermont Ethics Opinion 84-05 (1984); A.B.A. Model Rules of Professional Conduct 1.18, cmt. [2] (“[A] person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a ‘prospective client.’”); and The Restatement of Law Governing Lawyers §15, cmt. c. (In deciding whether to disqualify counsel, the court may consider whether the now-adverse party disclosed confidences in a good faith effort to determine whether to hire the lawyer or for the purpose of preventing the lawyer from representing an adversary).

Again, that these tactics may be common says nothing about whether they are ethical and should be tolerated. They violate Rule 8.04(a)(3).

Professor Moss taught legal ethics for more than twenty years the SMU Dedman School of Law before he retired. He is a member of the State Bar’s Committee on the Rules of Ethics. The opinions expressed here are his alone. He can be reached at fmoss@smu.edu.

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