by L. James Berglund II
Retention and effective utilization of experts is often outcome determinative in modern litigation. While the process may seem straightforward, there are significant risks and ethical duties involved during each stage that lawyers retaining and working with experts must carefully consider.
Ethical issues can arise early when retaining experts. Texas Disciplinary Rule of Professional Conduct 1.05 (TRPC) restricts the disclosure of client’s confidential and privileged information. Lawyers in possession of highly confidential or private client information should consider discussing and documenting with the client the information that can be revealed when evaluating an expert. When analyzing an expert’s potential conflicts, inquiries should be made as to whether the expert has been previously retained by the adverse party or obtained (or had access to) confidential information belonging to the adverse party as a result of prior engagements. Adequate due diligence should be conducted to identify facts that may potentially arm the adverse party with grounds to start the costly battle over whether the expert’s testimony should be prohibited entirely or significantly limited.
How an expert is to be compensated can also present ethical issues. TRPC 3.04(b) prohibits use of an expert witness who has a contingent interest in the outcome of the case. The restriction also applies to payments to entities such as those that assist in locating experts or an expert’s employer.
During the engagement, ethical issues can arise when supplying experts with information and documents. In addition to the obligations of confidentiality to their clients, lawyers should consider restrictions on disclosure of the adverse party’s documents and testimony contained in protective orders and obligations of confidentiality in connection with non-parties’ personally identifiable financial information or health information. If applicable, appropriate protective orders and confidentiality agreements should be considered.
Federal Rule of Civil Procedure 26 (FRCP) addresses formation of expert opinions and generation of reports. Until the 2010 amendments to FRCP 26, lawyers honed their skills in walking the fine line in communicating with expert witnesses and drafting expert reports in order to protect work product and avoid disclosing trial strategy to the opposition. The Rule was amended in 2010 to narrow the disclosure requirements, establish new work product protection for communications with experts, and expand work product protection to drafts of expert reports. Some have argued that the changes to FRCP 26 have enlarged the opportunity for unscrupulous lawyers to influence an expert’s opinions or testimony and avoid discovery of such misconduct.
Lawyers’ ethical duties, however, still apply to working with experts and the preparation of expert reports. TRPC 3.04 provides that a lawyer “shall not falsify evidence, counsel or assist a witness to falsify evidence.” TRPC 8.04 provides that a lawyer may not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
Accordingly, lawyers should be cautious about how much input goes into expert reports. Court decisions regarding “ghostwriting” caution that the requirement that the expert “prepare” their report implies more involvement than simply reviewing and signing what the lawyer drafted. Lawyers should not assume that Courts will ignore improper assistance or interference with the requirement that experts prepare their reports. At a minimum, when a lawyer plays too significant a role and a jury learns who truly “authored” the expert’s report, the lawyer jeopardizes the expert’s and the lawyer’s credibility.
Even after the amendment of FRCP 26, opposing counsel still will inquire about who did or did not write the report. Experts still should always be able to truthfully testify that the content of a report is fully adopted as his or her own opinion irrespective of who drafted the report. Experts also need to understand that their time records will be scrutinized and must accurately reflect the time devoted to the matter and to the creation of the report.
The process of effective identification, retention, and use of expert witnesses is a critical component of the preparation and trial of all but the most routine lawsuits. While the 2010 additive amendments to Rule 26 do provide protection for communications between lawyers and testifying experts, a proper understanding and application of the ethical limitations throughout the process itself remains critical.
James Berglund is a partner at Thompson & Knight LLP. He can be reached at firstname.lastname@example.org.