Lawyers, Expert Witnesses and Ethics-Beyond Mere Testimony

Lawyers and courts turn to expert witnesses to provide triers of fact with explanations of aspects of a case that are not commonly known. It is the subject matter expert's education, experience, and skill in a particular area that will help the triers of fact to reach a well-informed conclusion/decision. Examples of expert witnesses include medical doctors, accountants, engineers, DNA scientists, safety professionals and more. Lawyers (and the courts) will employ an expert witness to shed more knowledge involving factual issues for the purpose of discerning the truth. In short, expert witnesses educate, clarify, and explain a subject that is not common knowledge for most people.

Lawyers who seek to use expert witnesses may find it helpful to learn about some of the "rules" that pertain to expert witnesses. (Expert witnesses may find this information helpful as well.) What kind of working arrangements can be made between lawyers and expert witnesses? What expert witness payment arrangements are permitted, and which are prohibited? What interactions between lawyers and adverse expert witnesses are permissible? What lines of questioning are permissible between lawyers and the adverse expert witness? Can expert witnesses be sued for their work and/or role as an expert? Is there a standard of care that the expert witness must satisfy in carrying out his/her duties? What professional concerns exist for the lawyer when using an expert witness? What is the lawyer's role in the judicial system regarding expert witnesses relative to their client's interests? There are many questions here, but the following will hopefully shed some light on these issues.

Let's start with the lawyer's role. The lawyer is held-first and foremost-at the forefront of responsibility and potential professional discipline in judicial proceedings. Almost everything taking place in our judiciary revolves around the actions of the lawyer. The underlying premise for responsibility is, quite simply, that lawyers have several, simultaneous, ethical duties in practicing law-namely, maintaining the confidences of clients and case handling relative to dealings with the court, among others.¹ In short, the lawyer is responsible for almost all actions that occur relative to our justice system.

Colorado adopted the American Bar Association Model Rules of Professional Conduct (ABA Model Rules) on May 7, 1992.² The ABA Model Rules will be referred to in this article except where Colorado differs.³

Making false statements to a tribunal:

The ABA Model Rules expressly prohibit lawyers from knowingly making false statements to a tribunal. ABA Model Rule 3.3 (Candor Toward the Tribunal). This prohibition extends to evidence offered by a lawyer who knows that the evidence is false.⁴ (As discussed below, this prohibition extends to lawyers knowingly using an expert's false testimony.) Making the untrue representation in appellate pleadings that counsel was appointed counsel in the underlying trial constitutes a false statement.⁵ Not correcting the identification of a defendant where the true identify is known to the attorney and the attorney enters his appearance on behalf of the incorrectly identified party is deemed a false statement to the court.⁶

The lawyer has a further duty to take remedial measures where he/she subsequently learns the proffered evidence may be falsified.⁷ A lawyer's failure to verify his client's falsehoods where multiple credible sources consistently contradicted client statements, even if negligently done by the lawyer, may result in findings of unethical conduct and professional disciplinary action.⁸

But what if the lawyers learn, or knows, that an expert witness's testimony is false?

The lawyer's ethical duty to correct or remedy the false information that is presented before a tribunal extends to expert witnesses.

The integrity of our court system, the primary means of resolving conflicts peaceably in our society, rests significantly on lawyers. Lawyers are considered a keystone to maintaining court system integrity and a significant ethical obligation is placed upon lawyers to ensure their actions "avoid conduct that undermines the integrity of the adjudicative process."⁹ Any action by the lawyer which does, or could, result in misleading the tribunal by a false statement of law or fact, or of evidence that the lawyer knows to be false, is strictly forbidden.¹⁰

What if a client tells the lawyer, or the lawyer knows, that the client plans to make false statements to the tribunal? This situation puts the lawyer in an uncomfortable situation. Lawyers have a duty of loyalty to the client to protect confidences¹¹ however, this high standard has limits and courts have held that "[p]lainly, that duty is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth."¹² A lawyer's duty to protect client confidences does not extend to allowing the client to make perjurious statements to the court, and the lawyer must take steps to avoid being part of the same.¹³ A lawyer involved in real estate litigation put into evidence a purported original letter that subsequently turned out to not be original. The court found that the attorney had practiced willful deception upon the court and the public.¹⁴ According to ABA Model Rule 3.3, lawyers have a special duty to disclose untruthful evidence to the court and to prevent and disclose fraud upon the court, even if the disclosure compromises client confidences.¹⁵ Courts jealously guard their mandate of providing a quality, accurate, and fair judgment, and any conduct threatening this standard is unacceptable.¹⁶ Most significant in attaining and maintaining this standard is the lawyer and his/her duty to uphold the legal process.¹⁷

Learning of fraudulent conduct upon the court cannot only result in immediate judicial action in pending cases, but also in resolved cases-after even a significant passage of time. For example, an appellate court using its equitable authority vacated its original ruling (issued in 1932 with the final appeal in 1941) upon learning of a fraud committed upon it. A unanimous U.S. Supreme Court agreed, holding that "[n]o fraud is more odious than an attempt to subvert the administration of justice."¹⁸ In Hazel-Atlas Glass, a patent infringement case, the plaintiff's counsel presented to the appellate court a document purported to be from an independent industry expert, which was subsequently determined to have been ghostwritten by the presenting attorney. The appellate court took a rather dim view of this activity and reversed its previous ruling of years prior. In the original case the prevailing party (which presented the ghostwritten document) received one million dollars and a licensing agreement as a result of the appellate court's original ruling. The Supreme Court determined that a "planned and carefully executed scheme to defraud... the Circuit Court of Appeals" was extremely distressing.¹⁹ "Tampering with the administration of justice," where matters (in this case, a patent) of public interest are involved, the "preservation of the integrity of the judicial process" is critical.²⁰

What if the expert witness is going to, or has made, a false statement?

A lawyer's duty to avoid presenting false evidence to the court, or to remedy the subsequent discovery of false statements, also extends to the expert witness's testimony. Courts have used ABA Model Rule 3.4 (b) when false statements from expert witnesses occur. This ABA Model Rule, Fairness to Opposing Party and Counsel, states: "Lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law." The conscious use of false evidence, including expert witness testimony, is prohibited under this ABA Model Rule and may result in reversing a years old court ruling. Hazel-Atlas Glass Co., supra.

However, an expert witness misstating a license credential status-if such a credential bears little weight on the nature of testimony-may not warrant judicial action.²¹

Are there restrictions on payment terms between the lawyer and the witness?

Yes. It depends on the type of witness involved. There are two types of witnesses: the occurrence witness (testimony regarding a personally experienced or seen event, i.e., a fact witness) and the expert witness (subject matter testimony).²² This distinction is important, because payment of one (the occurrence witness) is prohibited by ABA Model Rule 3.4, and the other (the expert witness) is not.²³

What manner of payment is acceptable for the expert witness?

Contingent payment arrangements between the lawyer and the expert witness are prohibited under ABA Model Rule 3.4.²⁴ Generally, expert witnesses should not receive contingent fees out of concern for an expert's improper motivation to enhance testimony.²⁵ The reasoning is that the expert witness needs to provide unbiased and objective testimony devoid of concerns of case outcome.²⁶ Any condition that may interfere with the expert's testimony, or sway their testimony with the incentive of receiving a higher payout if the expert's testimony is "successful," is prohibited.²⁷ Our judiciary system is founded on the keystone of fairness and adjudication free from bias or misleading testimony. It is commonly understood and accepted that triers of fact give expert witness testimony "extra" weight by virtue of the expert's perceived specialized knowledge of a particular subject. Subject matter experts are relied upon in our judicial system to help sort out information so that, presumably, a verdict may be rendered based upon honest, unbiased information. Any condition or act that interferes with the justice process is strongly prohibited. Consequently, contingency fee agreements are prohibited because of the very real concern of improper influence on the expert's testimony. Expert witness contingency fee agreements may also be prohibited by statute.²⁸

What if a lawyer agrees to pay off a debt owed by the expert to some third party in return for the expert's testimony? Consider an attorney who paid off a debt owed by the expert and then preparing an installment note for the expert witness that will be forgiven upon "favorable" testimony. The lawyer's license was suspended because "a lawyer is prohibited from counseling or assisting his client in conduct that the lawyer knows to be illegal or fraudulent. It is both illegal and against public policy to pay or tender something of value to a witness in return for his testimony."²⁹ In short, a straight hourly rate or fixed fee represents ethically acceptable forms of payment for the expert witness. The arena regarding terms of payment for expert witnesses does not suit imagination.

But the law is not so simple; there are always exceptions.

Exceptions are the lifeblood of lawyering. There is an exception to payment terms for expert witnesses. In the expert world, there are two types of experts: consulting and testifying. A consulting expert provides assistance directly to the lawyer in the development of his/her case and may research, guide, and even write a report for use by the retaining lawyer. The lawyer does not retain the consulting expert to testify at trial and the expert is not so designated under disclosure rules. The use of contingency fee agreements with consulting (versus testifying) expert witnesses may be acceptable.

In Welhelm v. Rush³⁰ a lawyer prosecuting a fraud case on behalf of his client entered into a contingency fee agreement with an accounting expert witness. Compensation was directly tied to a "favorable outcome" on behalf of the client for research, finding fact witnesses, etc., but the expert was not involved with giving testimony. The expert attempted to negate his contingency contact with the lawyer as contrary to public policy. (The expert wanted more money.) The expert argued that such contingency agreements involving expert witnesses were against public policy, as such agreements encourage testimony that is likely to "procure testimony that would win the lawsuit."³¹ The court found that generally contingent fee arrangements between lawyers and non-testifying expert witnesses are acceptable (except in divorce cases).³²). The Wilhelm court concluded that the contingency contract was valid for "ordinary civil case" facts, conducting investigative and research services, and other activities that supported the claim of fraud.³³ Again, prudence should lead the legal practitioner to avoid contingency fee agreements with experts, regardless of expert's classification (consulting or testifying), altogether.

What limitations exist on a lawyer's communications with adverse expert witnesses?

The ABA Model Rules, Preamble and Scope, declares that a lawyer, "as a member of the legal profession," wears several hats simultaneously: a lawyer represents the client, is an officer of the legal system and a public citizen having special responsibility for the quality of justice."³⁴ The ABA Model Rules hold lawyers to standards concerning the client, the justice system, and a special responsibility for the quality of justice.³⁵ In short, lawyers need to represent the interests of their clients, but they must do so in accordance with the law. One of the elements of judicial propriety is the treatment of third persons, including adverse expert witnesses.

ABA Model Rule 4.4, Respect for Rights of Third Persons, broadly addresses the standard of dealing with others, which includes adverse expert witnesses. "A lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person."³⁶ Generally a lawyer must zealously act on behalf of his/her client;³⁷ however, this duty is tempered with regard to the methods that a lawyer may employ when carrying out his/her duties toward the client involving witnesses and third persons.³⁸

Lawyers seeking to discredit or impeach an expert must avoid the use of discrediting facts or assertions that exceed the realm of truthfulness against the expert's testimony.³⁹

Prohibited activity under ABA Model Rule 4.4 includes witness intimidation or tampering. If a lawyer offers an opposing expert witness employment or engages in ex parte communication, it will likely be deemed as tampering, which is prohibited. The "simple" act of asking an opposing expert witness to inspect a lock (the lock was unrelated to the present case)⁴⁰ for a fee of $100 per hour crosses into prohibited territory and such conduct was found to deny a party a fair trial.⁴¹ Sanctions for such behavior from a lawyer can result in monetary fines, charges of contempt, or disqualification of the offending counsel from the case.⁴²

Lawyer and adverse expert witness contact:

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