Locking Out Experts You Don’t Plan to Use
Is it unethical, as an attorney, to disclose case information to a potential expert without the intention of hiring her? By making disclosures, attorneys can successfully force an expert to conflict out of serving on the other side. The question becomes whether or not this is unethical or simply an aggressive litigation technique.
Some attorneys and experts have never seen this tactic practiced while other comment on its frequent occurrence. But ask attorneys whether they do it themselves and no one's hand goes up.
Attorneys and experts agree that the tactic of "locking out" experts occurs most commonly in one of two scenarios: either the field is highly specialized and there is a limited pool of qualified experts or the expert is so uniquely distinguished that 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. Although he never expected the practice of locking out an expert to happen to him, he quickly learned otherwise.
"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."
But, is it Ethical?
One federal appeals court alluded to attorneys 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 in that case was a different scenario: one party's retention of an expert with whom the other party still had a relationship.
Most attorneys, however, agree that while the practice is shady, it is not unethical. Boston trial attorney David White thinks calling the practice unethical would be too harsh an assessment, but adds, "It is certainly a hardball litigation technique."
“As a result of this practice, and as a cautionary note, attorneys should find and retain experts early, before the other side can take them off the table,” said corporate attorney Erik Anderson. “Particularly in cases where there are few experts on a topic.”
By getting an expert involved earlier, attorneys can avoid this tactic of removing expert talent while simultaneously building a stronger case.
Taken in-part from a BullsEye article by Robert Ambrogi.
Tell us: Have you ever experienced having an expert locked out of a case?