On Wearing Two Hats: Ethical Considerations for the Attorney-Expert Witness

Introduction

A lawyer who is also an expert witness should be mindful that although he or she may not always be wearing his or her "lawyer hat," it is never far away. Although the California Rules of Professional Conduct do not place specific restrictions on practitioners who act as both lawyers and expert witnesses, the rules governing lawyers' conduct generally place constraints on lawyers' activities in other businesses and professions. See California State Bar Ethics Opinion No. 1995-14. Of particular importance are the rules relating to advertising, lawyer-client confidences, competence, fee arbitration, and conflicts of interest.

Do the Advertising Prohibitions of Cal Rules of Prof Cond 1-400 Apply to Lawyers Marketing Nonlegal Services?

California Rules of Professional Conduct 1-400 governs certain aspects of a lawyer's marketing of services, and generally prohibits communications that are false, deceptive, or misleading. When the State Bar seeks to discipline a lawyer for an improper marketing communication, it must demonstrate that the lawyer intended the communication to generate business for his or her law practice. See Belli v. State Bar of California (1974) 10 C3d 824, 112 CR 527; Bus & P C § 6077. Although Cal Rules of Prof Cond 1-400(A) defines communication broadly to include "[a]ny use of firm name, trade name, fictitious name, or other professional designation of the member or law firm," most ethics opinions take the position that if a lawyer provides nonlegal professional services to a client, then the lawyer is not bound by the California Rules of Professional Conduct. See,e.g., California State Bar Ethics Opinion No. 1995-14. Therefore, when a lawyer is marketing purely nonlegal services, even if the marketing materials list his or her legal credentials, the materials are not subject to the Rules of Professional Conduct. See California State Bar Ethics Opinion No. 1999-154. From a practical standpoint, a lawyer marketing nonlegal services should consider, when appropriate, an express disclaimer on the advertising materials that he or she is not offering legal services or advice.

When a lawyer is engaged as a testifying expert, that lawyer is not being asked to perform the traditional role of a lawyer in providing legal advice. Rather, the lawyer is being asked to do what an expert in any discipline is asked to do: review materials or make other investigations, draw on expertise derived from the expert's discipline, and offer opinions on a particular point that is relevant to the case. Commonwealth Insurance Co. v Stone Container Corp. (ND Ill 2001) 178 F Supp2d 938.

Are Consultants Subject to the Same Advertising Restrictions as Attorneys?

Consultants who are also attorneys must use care to avoid engaging in the practice of law. The question of what constitutes the practice of law is generally determined on a de facto basis. California State Bar Formal Opinion No. 1984?79 (http://calbar.ca.gov/calbar/html_unclassified/ca84?79.html). Generally, consultants help counsel evaluate cases, develop legal theories, educate counsel, and suggest experts to be hired to testify. However, when a consultant engages in other activities, such as providing legal advice or preparing legal instruments, a court would likely find such activities to constitute the practice of law. See Baron v City of Los Angeles (1970) 2 C3d 535, 542, 86 CR 673. In this context, consultants engaging in these historically legal services would be subject to all rules governing attorneys, including those regulating attorney marketing and fee arrangements. To the extent an attorney-consultant engages in legal activities, he or she runs the risk of being deemed an advocate rather than an independent expert, not to mention the risk of legal malpractice.

To What Extent Are Communications With a Legal Consultant Protected Under the Attorney-Client Privilege?

Communications with an expert acting as a consultant are protected until the expert-consultant is designated as a witness. Shadow Traffic Network v Superior Court (1994) 24 CA 4th 1067, 1079, 29 CR2d 693. At that point, the opponent can seek disclosure of an expert's reports only upon a showing of good cause. It is important to note, however, that the work product doctrine affords absolute protection to the portions of the expert or consultant's report that embrace counsel's impressions and conclusions. Shadow Traffic Network v Superior Court, supra; see also Kizer v Sulnicke (1988) 202 CA3d 431, 440, 202 CR 712.

What Are an Attorney-Consultant's Ethical Obligations When Acting as a Consultant?

Although expert witnesses are professionals, no hard and fast rules exist governing an attorney-expert's ethical duties toward clients. While many professional associations provide guidelines for their members who serve as expert witnesses, no common set of rules exists to guide attorney-experts conduct prior to and at the time of designation. See, e.g. NASS Expert Witness Guidelines; American Academy of Neurology Guidelines; Expert Witness Guidelines for the Specialty of Emergency Medicine. A source of guidance available for the attorney-expert are the California Rules of Professional Conduct. Though a literal reading of the Rules does not create ethical obligations for an attorney-expert witness, such experts should act in a way compatible with the Rules as both an agent of the hiring lawyer and as a member of the State Bar. See Kolczynski, How To Be A Successful Expert Witness. Under California law, lawyers are professionally responsible for supervising the work of employees who act for the lawyer in rendition of the lawyer's professional services, and ensuring that such employees comply with the Rules of Professional Conduct applicable to the lawyer. Vaughn v. State Bar (1972) 6 C3d 847, 859, 100 CR 713; Cal Rules of Prof Cond 3-110. A lawyer who is hired to testify as expert witness is acting as an agent for another lawyer in the rendition of the lawyer's professional services, and thus, the duties imposed by ethical rules should be indirectly applicable to the lawyer-expert under an agency theory. Accordingly, before the time of designation, the lawyer-expert should become sufficiently familiar with the facts of the case to render a meaningful opinion. Further, like his or her lawyer counterpart, the attorney-expert should decline accepting designation as an expert if he or she would be unable to truthfully testify.

Once the lawyer-expert has been designated, many courts impose a professional standard of care on the expert, and have even held expert witnesses liable for a violation of that standard. Richards & Walter, When are Expert Witnesses Liable for their Malpractice?, 19 Eng'g in Medicine & Biology 107-109 (Mar.-Apr. 2000). The Pennsylvania Supreme Court even expanded the liability of expert witnesses to include negligence in the preparation of testimony. LLMD of Michigan, Inc. v Robert A. Swift et al (Pa 1999) 740 A2d 186, 191. (The judicial process will be enhanced only by requiring that an expert witness render services to the degree of care, skill and proficiency commonly exercised by the ordinarily skillful, careful and prudent members of . . . [his or her] profession.) As in other malpractice actions, the party claiming malpractice must show that the expert performed below the standard of the profession he or she represents, and that the substandard behavior caused the complaining party's injuries. An attorney who testifies as an expert -- indeed, any expert who testifies -- should exercise independent judgment, testify impartially and prudently, and avoid at all costs providing frivolous testimony to the court.

Is a Lawyer-Expert Required to Include Fee Arbitration Language in His or Her Retainer Letter as an Expert Witness?

Under the Mandatory Fee Arbitration Act (MFAA), (Bus & P C §§ 6200?6206), lawyers in California are required to participate in fee arbitration. The MFAA was enacted to require the lawyers to arbitrate any fee dispute, at the option of the client. Law Offices of Dixon R. Howell v Valley (2005) 129 CA4th 1076, 1086, 29 CR3d 499. The policy behind the MFAA was to alleviate the disparity in bargaining power between lawyers and their clients, and provide an effective, inexpensive remedy to a client in lawyer fee matters. Manatt, Phelps, Rothenberg & Tunney v Lawrence (1984) 151 CA3d 1165, 1174, 199 CR 246; see also Huang v. Cheng (1998) 66 CA4th 1230, 1234, 78 CR2d 550 (the MFAA's "purpose and policy...are to ensure the fair resolution of lawyer fee disputes"). The primary limitation of the MFAA is that it applies only to disputes concerning legal fees and costs. Bus & P C § 6200(a); see also Howell, 129 CA4th at 1087. However, a lawyer who is retained as an expert is not required to agree to arbitration with a client pursuant to California's MFAA. The MFAA was proposed by the State Bar of California to create a mechanism for arbitrating disputes over legal fees and costs. Aguilar v. Lerner(2004) 32 C4th 974, 983, 12 CR 3d 287. Fees obtained by a lawyer through services as an expert witness do not fall within the ambit of legal fees anticipated by the MFAA. Therefore, a lawyer-consultant is not be required to include fee arbitration language in his or her engagement letter for expert witness services.

Can a Lawyer Testify as an Expert in an Action Against a Former Client?

With regard to the California Rules of Professional Conduct provisions governing conflicts of interest, one can safely say that a lawyer's hat is never off until the day he or she surrenders his or her license. A lawyer must not do anything which will "injuriously affect his former client in any matter in which he formerly represented him nor may he at any time use against his former client knowledge or information acquired by virtue of the previous relationship." Galbraith v State Bar (1933) 218 C 329, 333, 23 P 2d 291 (emphasis added).

It is important to note, however, that the fact that a lawyer-expert previously provided legal representation to the opposing party does not in itself create a conflict of interest meriting disqualification. Santa Teresa Citizen Action Group v City of San Jose (2003) 114 CA4th 689, 7CR3d 868. Instead, a lawyer-expert must evaluate whether former fiduciary duties as a lawyer preclude subsequently testifying as an expert witness. California courts employ the "substantial relationship" test to determine whether an expert should be disqualified from testifying in a matter. Brand v 20th Century Ins. Co (2004) 124 CA4th 594, 602, 21 CR3d 380. Courts consider the time spent by the lawyer on the matter, the type of work performed, and the lawyer's possible exposure to the formulation of policy or strategy of the opposing party. Huston v Imperial Credit Commercial Mortgage Inv. Corp. (CD Cal 2001) 179 F Supp 2d 1157. Under this test, the disqualification of the lawyer-expert will depend on the similarities between the legal issues involved in the former representation and the legal matter on which the expert will testify. Courts will also ask whether confidential information material to the current dispute would normally have been imparted to the lawyer by virtue of the nature of the former representation. Brand, 124 CA4th at 602. Courts will presume that a confidential relationship existed if an attorney-expert had any contact with the opposing party. The burden is then on the attorney-expert to overcome this conclusive presumption by producing evidence that there was no opportunity for confidential information to be divulged. City National Bank v Adams (2002) 96 CA4th 315, 327, 117 CR2d 125. Other factors bearing on the presumption of disclosure include evidence that the attorney considered the previous relationship to be confidential (Wang Labs. Inc. v Toshiba Corp. (ED Va 1991) 76 F Supp 1246 (expert disqualified because attorney sent him envelope labeled "confidential attorney-work product")) and the absence of a screening wall. Western Digital v Superior Court (1998) 60 CA4th 1471, 71 CR 2d 179 (expert not disqualified because adequate screening mechanisms were in place at consulting firm). However, the lack of other available experts or the need for the disputed attorney-expert's specialized knowledge of an issue in the case may prevent a court from granting an order to preclude the expert from testifying. EEOC v Locals 14 & 154, Int'l Union of Operating Eng'rs (SD NY 1981) 24 Fair Empl Prac Cas (BNA) 1821.

A question arises as to whether an expert who is also an attorney may withdraw before testifying for failure of the hiring party to pay the expert's retainer. An attorney cannot unilaterally withdraw from a proceeding unless permitted to do so either by the client or the court. CCP §284; Cal Rules of Prof Cond 3-700. Even when a client fails to pay fees, the attorney may apply only to the court for release from further services, and may be released only for good cause. People v Prince(1968) 268 CA2d 398, 74 CR 197. The attorney may not "abandon" his representation at will, nor for considerations personal to himself." 268 CA2d at 406.

As discussed above, the role of the expert does not involve the rendition of legal services. Because a lawyer who is retained as an expert is providing only testimony, the rules governing attorney withdrawal for a client's failure to pay fees would not be applicable. Therefore, even if the retained expert is an attorney, he or she may withdraw if outstanding billings have not been paid in full by the commissioning party.

Conclusion

Lawyers who also market and provide services as expert witnesses face myriad ethical issues that must be carefully evaluated. Such dual practitioners must be aware of the requirements of the California Rules of Professional Conduct, including those relating to advertising, confidentiality, competence, arbitration, and conflicts of interest. The lawyer-expert must always keep in mind which hat he or she is wearing at any given time. Occasionally, it will be both.