The American Bar Association has rejected the adoption of proposed guidelines for the retention of expert witnesses in litigation.At its annual meeting in Chicago last month, the ABA House of Delegates voted down the resolution to adopt the guidelines, which described a set of uniform best practices for lawyers to follow when hiring experts.
The guidelines were drafted and proposed by a special task force appointed by the then-chair of the ABA Section of Litigation, Hilarie Bass, litigation partner with Greenberg Traurig in Miami. The purpose was to create a uniform and consistent set of guidelines where there are none now, leading to a common understanding of what is expected.
“While many experts have ethical codes applicable to their chosen professions, there are no uniform guidelines that apply to the retention and employment of experts,” explained the report that accompanied the resolution presented to the House of Delegates.
The lack of consistent guidelines has led to three problems in litigation practice, the report said:
- Inconsistent expectations of experts’ conduct.
- Unnecessary surprises that have negatively impacted the lawyer-expert relationship.
- Disqualification motions challenging the conduct of certain experts.
As proposed, the guidelines were fairly succinct and covered just five areas:
- Integrity/professionalism, providing that lawyers should seek experts who will act with integrity and in a professional manner.
- Competence, providing that lawyers should ensure that the expert is competent to take on the engagement.
- Confidentiality, providing that lawyers must ensure that the expert will protect the confidentiality of information received during the engagement.
- Conflicts of interest and disclosure, providing that lawyers should take steps to assure that the expert’s acceptance of the engagement will not create a conflict of interest, including asking the expert to disclose all potential conflicts.
- Contingent compensation, providing that lawyers may not offer experts compensation that is contingent on the outcome of the case.
"These guidelines are not intended to impose a professional obligation on lawyers to use them and a failure to do so is not intended to be deemed a professional lapse,” the report said. “If a retaining lawyer chooses to use them in discussions with experts, they would govern only the relationship between the retaining lawyer and the expert, and, therefore, will not create any duties to or rights for the adverse party or its counsel.”
Debate over Need for Guidelines
At the Aug. 6 meeting in Chicago of the House of Delegates – the body that sets ABA policy – Lawrence J. Fox, a partner with Drinker Biddle in Philadelphia, moved Resolution 101 to adopt the guidelines, describing them as “practical, common sense, essential guidelines” for lawyers. Three others spoke in support of the guidelines: Robert Peck, president of the Center for Constitutional Litigation in Washington, D.C.; Richard N. Bien, litigation partner with Lathrop & Gage in Kansas City, Mo.; and Herbert B. Dixon Jr., judge of the District of Columbia Superior Court.
Speaking against adoption of the guidelines were Ellen J. Flannery, partner with Covington & Burling in Washington, D.C.; Dwight L Smith of Tulsa, Okla.; Michael H. Byowitz, partner with Wachtell, Lipton, Rosen & Katz in New York, N.Y.; and Scott F. Partridge, partner with Baker Botts in Houston, Texas.
Flannery, representing the ABA Section of Science and Technology Law, argued that adoption of the guidelines would provide little benefit but present significant risks, according to a report of the debate published by The Federalist Society. The guidelines were an attempt to impose standards on other professions that already had guidelines of their own, she contended, and she questioned why the ABA would do this.
Another opponent, Dwight Smith, argued that lawyers who prepare their cases properly would already be doing everything covered by the guidelines, rendering the proposal unnecessary.
The full text of the proposed resolution and report is available from the ABA.
Our Own Proposed Ethics Guidelines
In a series of articles published in the IMS ExpertServices newsletter in 2009 and 2010, we proposed both an Attorney’s Code of Expert Ethics and an Expert Witness Code of Ethics. We first published the attorney’s code in January 2009 and the expert code in February 2009. Based on feedback and comments we received, we published revised versions of each in September 2010.
Our proposed code went into greater detail than did the ABA proposal, but paralleled it in the subjects covered, including expert impartiality, confidentiality, fees, conflicts of interest and professionalism.
Lawrence Fox, in addressing the House of Delegates, summed up the key subjects as the “four Cs,” according to The Federalist Society’s report, seeking to ensure that the expert is competent, maintains confidentiality, has no conflicts of interest, and is fairly compensated.
Guidelines or no guidelines, those are points on which every lawyer and expert can agree.
Editor's Note: Last week we touched on a lack of professional guidelines for experts in the context of social media and provided updated social media guidelines for 2012.
Are you in favor of the adoption of uniform guidelines for the retention and employment of expert witnesses?
Do you think a model code of professional guidelines for experts would be a help or hindrance? What ethical areas most concern you?