by Andy Cox
In personal injury cases, early consultation with and engagement of the best possible experts in the field are critical steps to success. But is an ethical line crossed when the expert consultation or engagement is made not to advance the prosecution or defense of one’s own case, but solely to deprive one’s opponent of obtaining competent expert testimony for his? The Texas Professional Ethics Committee (the Committee) answered this question in Ethics Opinion No. 676, which concluded, “The Texas Disciplinary Rules of Professional Conduct prohibit a lawyer from retaining an expert or disclosing confidential information to a prospective expert when the lawyer has no substantial purpose other than to attempt to disqualify or otherwise prevent the expert from being used by, including testifying on behalf of, an opposing party.” Professional Ethics Opinion 676 (August 2018). See Texas Bar Journal, Vol. 81, No. 9, pp. 703-704 for the complete text of the opinion.
The Committee concluded that the practice of retaining an expert or intentionally disclosing confidential information to a prospective expert solely to prevent that expert from being engaged by an opponent violated Rule 4.04(a) of the Texas Disciplinary Rules of Professional Conduct, which provides, “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.” Tex. Disciplinary R. Prof’l Conduct 4.04(a).
The Committee reasoned that this practice could in some cases impede a party from obtaining a qualified testifying expert, either because the expert has already been retained by the opposing side, or because the expert would be disqualified from working for the party because the opposing party had revealed confidential information to the expert. Although this practice may not burden a party in some cases, it could in those cases where a party needs expert testimony to prosecute or defend the case and “when only a small number of individuals possess the expertise necessary to provide informed and credible assistance including testimony on a given subject.” In reaching its conclusion, the Committee followed the reasoning and conclusion of Professional Ethics Opinion 585 (September 2008). In that opinion, the Committee concluded “a lawyer would violate Rule 4.04(a) by counseling a client to hire all the local lawyers in a community where a lawsuit is filed if the lawyer had no substantial purpose other than to delay or burden the opposing party.”
The Committee clarified that a violation of Rule 4.04(a) does not turn on whether it resulted in actual burden to another person, as for example, where prior consultation with an expert for the sole purpose of disqualifying that expert from working for an opponent does not actually result in disqualification of the expert. “As Opinion 585 states, ‘if the only substantial purpose for a lawyer’s actions in a particular case is to embarrass, delay or burden another person, such conduct violates Rule 4.04(a) without regard to whether the other person was actually embarrassed, delayed or burdened.’”
To be sure, consulting with more than one expert on a given subject matter, even when a lawyer has already retained an expert in the area, does not, alone, run afoul of Rule 4.04(a): “It is not necessarily improper for a lawyer who has already retained an expert to interview additional experts on the same topic, provided the lawyer actually is considering using additional experts in the case.” An example is the pure consulting expert. The mental impressions and opinions of a pure consulting expert are often highly valuable to a trial lawyer and the propriety of obtaining them has been so recognized that, generally, they fall within the scope of the work product privilege. See Tex. R. Civ. P. 192.5(a); Tex. R. Civ. P. 192.3(e). The essential inquiry under Tex. Disciplinary R. Prof’l Conduct 4.04(a) is whether the lawyer’s only substantial purpose for retaining or disclosing confidential information to an expert is to delay or burden another person. The Committee concluded that inquiry “depends on the circumstances and is a question of fact to be decided in each case.”
In short, lawyers are free to consult with, and engage, as many experts as they need to support their case, so long as they are not doing so solely to burden or delay an opponent.
Andy Cox is a partner at Burford & Ryburn, L.L.P. He may be contacted at firstname.lastname@example.org.