Proposed: A Lawyer's Code of Expert Ethics

Comment submitted by Anonymous (an expert) on 4/14/2011 6:49:52 AM:

I.G and I.F seem to be in opposition especially if the expert is told to ignore something and now write your report. I can see that if what is being asked to be ignored is not a fact but an opinion, this may be reasonable. In this case, the expert should know to do this on their own. V.A gives an opposing attorney power to knock out a plaintiffs attorney. I do think that an expert should be given any implied power over the other side's lawyer. A lawyer can excuse him/her self to later become a witness.

Comment submitted by Fred C. (an expert) on 3/23/2011 8:06:56 AM:

The Digital Forensics Certification Board, the IEEE, and the (ISC)2 all have codes of ethics that I follow. These seem to me to be reasonably adequate to the tasks I tend to face as an expert. They are all posted prominently on my Web site (http://all.net/) and we take them very seriously.

Comment submitted by Robert (an expert) on 3/2/2011 3:18:55 PM:

I ask for an engagement letter before accepting an assignment as an expert.I may or may not ask for a retainer. (I have never been stiffed by an attorney.) But I will not agree to be compensated by the attorney's client. In the first place afinancial relationship between me and the client could at least appear to prejudice my testimony. In the second place I know that the attorney is bound to pay my fee no matter the outcome of the case.

Comment submitted by Dean W. on 8/17/2010 2:33:55 PM:

V. b. needs clarification -- counsel should exclude a formerly opposing expert ONLY if counsel had previously argued that the expert was not credible on the particular subject matter of the case. For example, suppose a renowned expert on gene-splicing who is also an amateur agronomist had been retained as an expert on tree-grafting. Counsel might reasonably ague that said expert is not credible with respect to tree-grafting, yet choose to retain that same expert on a later case involving gene-splicing. Of course, this raises the question of to what extent counsel might reasonably impugn the credibility of said expert. For example, if counsel had challenged the experts' credibility by presenting evidence that he's an unreliable alcoholic previously convicted of perjury, that might apply differently than if counsel had simply challenged the expertise on the subject matter.

Comment submitted by Joe on 7/27/2010 11:00:18 AM:

I agree with several of the comments that some of the rules are a bit too prissy. For example, a testifying expert is responsible for his report in its final form - responsible for every detail of support and judgment. But whether sections of that report are drafted by members of his staff or by attorneys is immaterial. Initial authorship is a problem for less secure or less experienced experts. In that same vein, the attorneys should be able to determine which issues are addressed in the expert report. It is not the expert's role to inject issues into the record of the case. He should, however, educate the attorneys that some issues they intend to exclude may be raised by those on the other side of the case. The attorneys must decide whether it is better to pre-empt those issues in the report or respond to them later. I have been an expert for about eight years, and I really like the type of work that I do and the people that I work with - and against. I have never been pressured to change an opinion, and I have only seldom been misrepresented by opposing counsel - never to lasting effect. Some of the proposed rules are obviated by changes to impending changes to Rule 26 or the FRCP concerning confidentiality of attorney-expert communications.

Comment submitted by CB on 6/29/2010 11:55:16 AM:

I concur with most that V.B is inappropriate in a code of ethics. Ethical lawyers and experts alike maintain their objectivity and integrity regardless of the case they are working. Even hinting that such a 'rule' is appropriate insults both professionals and undermines the ability of the lawyer to put on the best possible case for their clients as well as eliminating experts whose skills and testimony may be important or even critical to a separate case. I would also concur that several of the 'rules' are overly broad and create more confusion than clarity, e.g. I.I and VI.B. We have many examples of 'rules makers' who think they are doing good by imposing their particular view on the majority. For example, dogs as protected pets (USA) or as food (Korea, Vietnam, China, ...). Or when is disciplining one's children 'teaching' or 'abuse?' While I do not propose to have the answer in these or many other cases, we must recognize the need for tolerance of varying perspectives while simultaneously maintaining the integrity of the entire process. As another said above, these 'rules' tend to be sufficiently vague that they are more likely to create another sideline battlefield rather than clarify anything.

Comment submitted by anonymous on 6/15/2010 9:44:10 AM:

As a prior expert witness, I agree with other comments that V a & b are not needed and not consistent with my understanding of conflict of interest.

Comment submitted by Forensic Accountant on 5/27/2010 4:51:58 PM:

I do not agree with V.B., nor do I understand the rationale for its inclusion. I view it as a professional compliment when an opposing attorney on one case subsequently seeks to hire me on an unrelated case at a later date. It means that I was a worthy and credible expert. As long as I am not working for and against an attorney at the same time I don't see a problem.

Comment submitted by Anonymous on 5/25/2010 9:56:55 PM:

The use of "should" in Paragraphs V.A. and V. B. seems to allow disregard of the rule. Worse, those paragraphs could prompt some mischief.

Comment submitted by Bill W. on 1/15/2009 9:00:19 AM:

There are, and there will continue to be, unethical attorneys and unethical expert witnesses. As an expert witness I am always willing to discuss the issues and keep an open mind - but my opinions are always my own and an attroney who tries to get me to change my opinion on an issue I am to testify about will lose his/her expert witness. Be professional, do not lie, cheat or betray your personal standards. Nothing else needs to be said?

Comment submitted by Roger S. on 1/14/2009 2:27:09 PM:

I think writing down this proposed code of ethics is very helpful. I have two concerns with the current draft: Regarding 1b: While the lawyer shouldn't "pressure" an expert witness to change an opinion, as an expert witness myself, I welcome a vigorous dialog with both the lawyers and (when possible) with other experts to access new information and arguments to "convince" me to change an opinion. I always want my opinions to be as accurate and informed as possible, and a healthy dialog - or even debate - with the lawyers is often helpful in providing more accurate opinions. Regarding 4b: While I agree that the lawyers shouldn't "dictate" the contents of an expert's written report, I believe that it is both common and ethically acceptable for lawyers to draft or suggest language for use by the expert in his/her expert reports -- especially if the lawyer and expert have already agreed on the general points to be made during a previous meeting. It is never ethical for anyone to ask a technical expert to agree to and sign any opinion without providing the expert with a easy and convenient way to revise it according to the expert's judgement and conscience.

Comment submitted by Merrilyn T. on 1/13/2009 5:09:40 PM:

As someone who has been called upon to serve as an expert witness, I heartily applaud this effort. Further, I would require that the precise language of this code be shared and reviewed with an expert witness prior to any engagement. This is a slippery slope fraught with subtlety and counter-intuitive motivation. It is far too easy for an unsophisticated expert witness to perceive - without instruction - that it is their job to "please the client." Providing these quidelines ahead of time could help them understand the dynamics of the relationship and what is expected/demanded of the lawyer who is engaging them.

Comment submitted by Hank L. on 1/13/2009 2:11:21 PM:

Section V.A. is unworkable and needs to be dropped. If it stays, Attorney A will be able to disqualify opposing counsel (Attorney B) simply by retaining an expert that was at one time a client of Attorney B.

Comment submitted by Anonymous on 1/13/2009 1:08:02 PM:

Many of these are written broadly enough to conceivably cover proper activities. Say you set a rule "thou shalt not raise thy hand against thy wife." Well, can I waive hi to her? Rules that are too broad will result in attorneys using them literally as improper ammunition in situations they weren't intended to apply - resulting in unecessary side battles in litigation.

Comment submitted by Lawyer on 1/13/2009 12:58:57 PM:

Most of Section I (except the part about not presenting false testimony) is inappropriate and would put lawyers in a bind because their duty of zealous representation requires them to try to obtain favorable opinions and testimony from an expert. There is nothing wrong with testing an expert's initial opinion, challenging whether it's right and presenting arguments to the expert that it's not right, or otherwise engaging substantively with an expert in an effort to obtain the most favorable opinion and testimony that the expert can honestly and truthfully provide. All of this is fine: indeed this is at the heart of the adversary system used in the United States (as opposed to the inquisatorial system used in much of Continental Europe). Attempting to limit it is uninformed and naive. What's most important, and already amply provided for in the legal ethics rules, is that a lawyer not present testimony he or she knows to be false. And it's also the expert's independant obligation to give only truthful testimony. If an expert can't give testimony the lawyer needs for his case, the lawyer won't present the expert and the expert will tell the lawyer that he shouldn't use him because his opinions won't be what the lawyer needs.

Comment submitted by Ren on 1/13/2009 12:57:40 PM:

I believe there is an erroneous perception that too many experts are "hired guns" and will testify for the money rather than the truth. In fact, I have never known any experts who lacked professional and ethical standards. I have however, on several occasions, had to resist the honest efforts of an over zealous attorney to make modest alterations to my opinion. It is my position that the experts job is easy ... all he needs to do is tell the truth.

Comment submitted by Stephen H on 1/13/2009 11:53:46 AM:

Underpinning the ethics issue regarding an attorney attempting to influence an expert's opinion toward one favorable to the case is this very practical consideration: An attorney should be interested in potentially adverse opinions from the retained expert as a source of intelligence regarding what ammunition the opposing side has.

Comment submitted by Anonymous on 1/13/2009 11:39:40 AM:

I also agree that Section V.B. is not appropriate. I have had several instances where opposing attorneys found me to be honest and credible and thus hired me for a later case. In one multi-party case, a settlement was actually reached between two parties based on my willingness to continue to testify to exactly the same opinions on behalf of the remaining party.

Comment submitted by Anonymous on 1/13/2009 11:24:01 AM:

I would very much appreciate futher comments on item VI.G. In most of the cases in which I've served as a technical expert, the attorneys I've worked with have wanted to draft the expert opinions I've submitted. I don't mean they wrote them and I just signed them, but they drafted them and then together we reworked them--sometimes quite extensively. And I'm always quite careful to refuse to sign anything that doesn't accurately state my actual opinion. The attorneys often tell me that an important reason they want to develop the opinion documents this way is so that there are no draft versions extant that are subject to discovery. Is this not standard practice? What are other people's experience?

Comment submitted by Administrator on 1/13/2009 11:11:15 AM:

Mark: Yes, we'll be posting an expert equivalent next month.

Comment submitted by xxx on 1/13/2009 11:10:22 AM:

under iii.fees no comment on fee arrangement between lawyer/expert vs. lawyer's client/expert. i.e. can expert's fee be paid directly by atty's client?

Comment submitted by Mark B. on 1/13/2009 11:10:20 AM:

Is there the equivalent of this code of ethics for expert witnesses?

Comment submitted by David S. on 1/13/2009 11:08:00 AM:

Conflict of Interests: Having served as an expert witness, I find many large law firms have used me or are on the other side, because of their size. It should not be a conflict

Comment submitted by Allan G. on 1/13/2009 11:07:15 AM:

Yes it is good to have an ethics code. It gives us (experts) a framework to support or oppose our own feelings. Re specific comments, see the email sent separately, which you can abstract or use as you see fit. When all is said and edited, this should be available on the net, and lawyers/experts should know about it enough to make it a pasrt of their retention agreement. ALG

Comment submitted by Anonymous on 1/13/2009 11:01:06 AM:

If an expert or attorney needs this code, the attorney should not practice law, and the expert should not be an expert. In the alternative, carry at least $100 million professional liability limits. Looks like it will be needed.

Comment submitted by Anonymous on 1/13/2009 10:56:40 AM:

I agree that Section V.B. is not reasonable. I have been retained as an expert more than once in the past for the very reason that the hiring attorney was impressed with my expertise in testimony for an opponent in another unrelated case. Other than that reservation, the rest of the Code of Ethics appears to be reasonable, although I think somewhat uneccessary if all concerned adhere to their respective profession's codes of ethics.

Comment submitted by Setto J. Free on 1/12/2009 5:41:53 PM:

I would think adhering to professional conduct would eliminate a need for a "Code of Ethics".

Comment submitted by Anonymous on 1/12/2009 5:39:33 PM:

I think section V. B. suggests an underlying issue with the expert witness system. Why should work on one case mean a lawyer is questioning an expert's ability for all time, rather than simply questioning the expert's merits for the case at hand? Yet that's what this section suggests is necessary. I don't really mean to suggest this chapter and verse is wrong, rather that there's an issue with a legal system that requires that kind of demolition of experts.

Comment submitted by Anonymous on 1/12/2009 9:53:01 AM:

I would add "in a timely manner" to III A.