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Ethics and Experts
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Do lawyers ever retain experts just to lock them out from being
hired by the other side? If so, is the tactic fair play in the
hardball game of litigation? Or are lawyers who would do this,
as one court suggested, short on scruples?
Ask either
lawyers or experts whether they see this done and their answers range from "often" to "never." Ask
them whether they approve of the practice and their answers vary just as widely.
But ask lawyers whether they do it themselves and no one's hand goes up.
"Lawyers do occasionally contact or 'retain' experts solely to disqualify
them from working for the other side," says Erik Anderson, senior attorney
in the corporate legal department of Safeco Insurance Company of America. He
should know: he faced this situation in a case not long ago in which one party
sought to disqualify the other's expert.
Another lawyer who has seen it done is David W. White, a trial attorney in Boston
who is also president of the Massachusetts Bar Association. Although he would
never do it himself, he once found himself the victim of this tactic.
"It was an antiques case, where fraud was alleged," White says. "There
wasn’t an available independent expert on the east coast of the U.S. because
the plaintiff had consulted them all."
This tactic
of "locking out" experts occurs most commonly in either of two scenarios,
lawyers and experts agree. Either the field is highly specialized and there is
a limited pool of qualified experts or the expert is so uniquely distinguished
that he or she is highly sought after.
Consider Werner
Engelmaier, for example. He is one of only a handful of experts who specialize
in the design, manufacturing and reliability of electronic packaging. When he
first became an expert witness, colleagues warned him of the practice. And then
something similar happened to him.
"The
law firm contacted me and made disclosures to me about the case before ever retaining
me," he says. "They never did retain me, but they had disclosed so
much that I had to recuse myself from working with anyone else in the case."
Ever since,
Engelmaier has structured his retainer agreement in a manner designed to insulate
himself from similar taints. He requires a steep retainer, $10,000, and blocks
potential clients from disclosing anything about the case to him until the retainer
is paid.
If the client
retains him, then once his billing exceeds $10,000, he returns the retainer.
Of course, if the client does not retain him, he refunds the retainer. "This
serves to discourage preemptive disclosures that would disqualify me from the
case," he says.
Is it Ethical?
Most
agree, then, that the practice exists. But that begs the question, "Is
it ethical?"
One federal appeals court alluded to lawyers who would do this as "unscrupulous." The
dictum from the 5th U.S. Circuit Court of Appeals came in Koch Refining
Company v. Boudreaux, a 1996 case in which it considered the standard
to apply when weighing disqualification of an expert.
The standard for disqualification should not be too liberal, the
court reasoned, for fear that "unscrupulous attorneys and clients
may attempt to create an inexpensive relationship with potentially
harmful experts solely to keep them from the opposing party." But
the issue at bar in that case was a different scenario: one party's retention
of an expert with whom the other party still had a relationship.
Of the lawyers
and experts contacted for this article, no one considered the practice unethical
in the strict sense of the word. But several made clear their distaste for
the practice as one they would never do.
Bob Kraft, a trial lawyer in Dallas, Texas, and principal of the
firm Kraft & Associates, says he has only heard of the practice anecdotally
but knows it occurs. "In my opinion, it is not widespread, and I do
not approve of it," he says. "There's nothing illegal or unethical
about it, but it just seems a bit shady to me."
Boston trial lawyer David White sounds a similar note. To call the
practice unethical would be too harsh an assessment, he says, adding: "It
is certainly a hardball litigation technique."
And on the list of lawyers' hardball tactics, this is not even one
of the worst, says David C. Winton, a lawyer in San Francisco. "It's
just another in a very long list of frustrations that we have to
live with in litigation," he says. "But I wouldn't say it's anywhere
near the top of that list. It falls under the category of 'getting skunked'
and is something I try very hard to avoid."
Deep Pockets Required
More than ethical concerns, economic
ones may be the greatest reason the practice is not more widespread.
"You need deep pockets to hire an expert witness for the sole purpose
of keeping him from the other guy, and it can sometimes backfire since his
'honest' expert opinion may come out in discovery, at which point you just
paid someone to give a damning opinion of your case," says Alexander J.
Hay, a business and finance lawyer in Houston, Texas.
Expense
is precisely the rationale behind Werner Engelmaier's decision to charge a
high retainer fee as a way of discouraging the practice. But he admits that
if the client's pockets are deep enough and its will strong enough, even the
retainer may not dissuade them.
A native
of Austria, Engelmaier believes a better way to prevent misuse of experts would
be for the courts to hire the experts, as is common in Europe. But he concedes
that could raise other problems and is unlikely ever to happen here.
"I'd rather have a system that produces justice rather than huge incomes for
lawyers and expert witnesses," Engelmaier says.
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