Stiff an expert witness and an attorney may face more than just a lawsuit for the unpaid fees. The attorney could also risk losing his or her license to practice law.
Texas attorney Marc G. Rosenthal found that out earlier this month when the State Bar of Texas Commission for Lawyer Discipline filed a disciplinary action against him. A major charge of the action is that Rosenthal failed to timely pay an expert witness.
The expert, a certified public accountant, billed Rosenthal $36,090 in 2008 for work he had done in a civil lawsuit. Rosenthal allegedly gave the expert a post-dated check in March 2009, but then ordered a stop-payment on the check. After two years of trying to collect the fee, the expert filed a complaint with the state bar. Earlier this year, Rosenthal paid the expert in full.
“I think the Bar is just wrong about making this into a lawyer misconduct matter,” the attorney who represents Rosenthal, Steven L. Lee of Austin, told a news reporter. “I think it’s simply a matter of a private civil debt.”
As it turns out, however, this is not the first disciplinary case against an attorney for failing to pay an expert. To the contrary, there have been a number of such cases in recent years.
In 2009, the Supreme Court of South Carolina ordered the disbarment of attorney Oliver W. Johnson III for various acts of financial misconduct that included his failure to pay an expert witness and a court reporter. Johnson was also charged with misappropriating client funds, failing to properly maintain his trust account, failing to pay taxes and child support, and failing to communicate with his client.
Had the non-payment of the expert been the only charge against Johnson, it is unlikely he would have been disbarred – the severest form of sanction. Even so, the court expressly cited his failure to pay the expert and the court reporter as grounds for discipline. And, in a subsequent case, it relied on the Johnson precedent to support an order of discipline against an attorney who failed to pay other case-related expenses.
Also in 2009, the Supreme Court of Ohio ordered the indefinite suspension from practice of attorney Michael McCord. Here again, the attorney faced charges over various acts of misconduct. But the failure to pay an expert was the first count in the statement of charges against him. Similar to the Rosenthal case, McCord gave the expert a check for the full amount of his bill, only to stop payment on it the next day.
Notably, the state disciplinary board had concluded that the failure to pay did not violate attorney-discipline rules. The Supreme Court disagreed. “There is no dispute that respondent induced the expert to attend the deposition with the promise of compensation and then broke this promise once the deposition was completed,” it said. “There is no foundation for the notion that this was a good-faith dispute over service rendered; it was simply a refusal to pay the fees promised.”
Other cases of attorney discipline for failing to pay an expert:
- Earlier this year, the Tennessee Supreme Court imposed a suspension of six months (and possibly longer, pending payment of restitution) on Gerard Thomas Nebel for failing to pay an expert witness after having been given $3,000 by a client for that purpose.
- In 2008, the Minnesota Supreme Court disbarred David T. Redburn, in part due to his failure to pay an expert witness. Here again, the failure to pay was only one of several acts of misconduct Redburn was alleged to have committed.
- In an earlier Minnesota matter, an attorney was given an admonishment – the lowest form of disciplinary sanction – for failing to pay an expert. In this scenario, failing to pay an expert was the only act of misconduct, and the low form of disciplinary action was chosen because the attorney presented evidence that she was unable to pay and was not willfully ignoring her financial obligations.
- In 1997, the Arizona Supreme Court disbarred Ernesto R. Castro for various acts of misconduct. One of the charges against him was that he failed to comply with court orders relating to payment of an expert witness.
- In 1993, the Supreme Court of Colorado disbarred John D. Stauffer Jr. in part because of his failure to pay an expert witness. This was the second time Stauffer was disciplined for this reason. In 1987, the court ordered a public censure of Stauffer, also because of his failure to pay an expert.
As for Marc Rosenthal in Texas, the complaints against him will be heard in a state district court. If the court finds that he violated Texas disciplinary rules, he could face sanctions ranging from a reprimand to disbarment.
Tell us: Do you think failing to pay an expert is an attorney-misconduct matter or an issue of private civil debt?
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Many years ago, before I got smart and required my counsel to sign an agreement to to pay my fees, I had outstanding invoices over a year old in several cases. Although this behavior reflects badly on the attorney, I think it is a civil matter.
Lately I had similar situations. What was your best solution to deal with such problem? Can you be more specific about the agreement that you mentioned.
I read these comments with interest. Perhaps this issue of payment problems is one of the reasons I have thus far been reluctant to fully embrace serving as an ‘expert witness.’ In my own private practice as an international consultant in chemistry/nano, etc., where I do not become involved as an expert witness and I do not work with lawyers (realizing, of course, that anyone in any profession can choose to be a bad client by not paying in a timely manner), I can state that I receive prompt payment in full, within 30 days of invoice; sometimes full payment is received in 7-10 business days. Just an observation; not meant to be a passing of judgment.
I have received a check from a Canadian law firm within 1 week of completing the info required by the firm to send me the check. Consider that I live 1500 miles from Canada, and it arrived within 7 days.
I always require an attorney to sign an agreement which requires a retainer and contains the following clause “The Client agrees to make full payment of any invoiced amounts no later than 30 days from the date of the invoice. Any invoice amount unpaid by the Client will become a lien against the Client’s property and any court or arbitration award of the cause, lawsuit, or action for which Alexander has provided services. Past due balances are subject to a 2% monthly interest charge and a $25.00 monthly service charge.”
I was hired by an attorney in a technical case involving a patentee and his agent, in which the agent was suing the patent holder for not paying a commission after the agent arranged a meeting between the patentee and a generic pharma firm. The patent in question had several “add on” patents and the inventor claimed that the original patent was part of his agreement with the agent, and not the later extensions.
I agreed to a limit of 25K in a contract, but the attorney continued using me after my billing exceeded $25K. Opposing counsel asked me twice, once during deposition and once during trial if I expected to be paid the additional billed amount. To which I said I did. My attorney ignored my questions aafter my testimonies, and in the end they stiffed me for about $22K. My mistake was that I should have asked for a break with this question, got it resolved in writing, and then continued. Or stop, at that point and go home. So this trial over deserved payment of a commission where I provide the testimony that my client ultimately won over $2 million, ended with me being stiffed for $22K.
You’d think that all concerned would realize that the matter before the bench was whether the agent got stiffed, and that they would in justice pay me in full. But they did not. I have thought about writing the judge.