Opinion 94-22
(May 1995)

You have inquired of the Committee whether you may contact and, thereafter, retain and/or depose an expert witness retained by counsel for an opposing party.1 More specifically, the expert in question ("the expert") has been retained by plaintiff's counsel but cannot give an opinion favorable to plaintiff and will not, therefore, be "used."

The Rules of Professional Conduct do not directly address the issues raised in your inquiry.2 Accordingly, the Committee does not, based upon the limited facts in your inquiry, see any express prohibition against contacting plaintiff's expert. Nevertheless, it is the view of the Committee that several Rules of Professional Conduct would be implicated by such a contact and that these Rules need to be carefully weighed in deciding how and even whether to proceed.

Your dealings with the expert will be transactions with persons other than clients" within the scope of Rules 4.1 through 4.4. This sequence of the Rules of Professional Conduct addresses a lawyer's obligation of candor to third persons with whom he comes into contact on his client's behalf.

Rule 4.2 governs "Communication With Person Represented By Counsel." This Rule prohibits a lawyer from communicating about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter" unless the other lawyer consents or the communication is "authorized by law."3 Clearly, therefore, you must satisfy yourself that the expert is not represented by plaintiff's attorney or any other lawyer, including the expert's personal counsel, who may have become involved "in the matter."

In the event the expert is not represented, you must still avoid making any false statements of material fact or law (Rule 4.1), implying you are disinterested or taking advantage of any misunderstanding's on the expert's part as to your role in the matter (Rule 4.3), and using methods of obtaining evidence that violate the legal rights of a third person (Rule 4.4).

While you acknowledge that an expert cannot be compelled to give testimony absent consent and reasonable compensation, the Committee notes that the expert's relationship with plaintiff or plaintiff's counsel may have given rise to responsibilities on the expert's part which might be jeopardized by your overtures. Such responsibilities could include testimonial privileges such as those between a patient and psychotherapist. Your contact with the expert may also threaten the expert's obligations to plaintiff or plaintiff's counsel under the standards of professional conduct which obtain in the expert's own discipline. Other legal rights of the witness could include those arising out of any potential contractual relationship between the expert and plaintiff's counsel; in this regard, we note your suggestion that the expert continues to "be retained" by plaintiff's counsel.

A key consideration underlying these Rules generally, and Rule 4.4 particularly, is the extent to which an opposing party's expert may be in possession of confidential information or work product of the opposing party and/or his/her counsel, about which it would be improper to inquire. In this connection, there was also some concern within the Committee that there may be situations where an expert's relationship with a party, either directly or through counsel, may have become that of agent and principal, in which case your responsibilities under Rule 4.1 through 4.4 may be heightened. You should also remain mindful of explicit statutory provisions or specific rules of civil procedure, such as Pa. R.C.P. 4003.6 governing discovery of treating physicians, which may apply.

The Committee also wishes you to be aware of the position of the American Bar Association in Formal Opinion 93-378. In that opinion, the ABA concurred in the view that there was no outright prohibition against ex parte communications with an expert retained by opposing counsel. After expressing concerns similar to ours about the applicability of Rules 4.1 through 4.4, the ABA also commented on the relevance of subsections (b), (c), (d) and (f) of Rule 3.4 of the Model Rules of Professional Conduct. This Rule, entitled "Fairness to Opposing Party and Counsel," has been adopted, with significant modification, in Pennsylvania. Both versions of the Rule forbid a lawyer from falsifying evidence or counseling a witness to testify falsely (Model Rule 3.4(b) and Pennsylvania Rule 3.4(b)), and requesting a person other than a client to retrain from voluntarily giving relevant information to another party (Model Rule 3.4(f) and Pennsylvania Rule 3.4(d)). Although the two versions of the Rule track conceptually, there are significant differences. Notably, Rule 3.4(d) as adopted in Pennsylvania forbids a lawyer from requesting "a person to voluntarily refrain from giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client 4; and (2) the lawyer believes that the person's interests will not be adversely affected and such conduct is not prohibited by Rule 4.2" (emphasis supplied) . The emphasized language is not seen in the equivalent Model Rule, thus underscoring the Committee's concern that the Rules give considerable weight and protection to the existence or a prior relationship between a witness and a party or the party' s counsel.5

The Committee concludes, therefore, that notwithstanding the lack of an outright prohibition in the Rules of Professional Conduct against contact with plaintiff's expert witness, such a contact may be impermissible or, at the very least, tightly circumscribed depending upon the circumstances. Your remaining inquiries as to retaining and deposing the expert follow from whether your initial contacts with the expert can properly be undertaken.


Notes
  1. Although you do not specifically say so, it is our understanding that you represent defendant and that the opposing party in this instance is the plaintiff.

  2. Such issues tend to be fact-sensitive questions of substantive and procedural law upon which the Committee generally does not comment.

  3. In Formal Opinion 90-142 (December 7, 1990) , the Pennsylvania Bar Association outlined four conditions under which counsel might be permitted to have ex parte communications with former employees of an adverse party, a situation analogous to the one you have raised:

    1. The attorney is prohibited from eliciting or using information that is protected by the attorney-client privilege;

    2. The attorney must disclose his/her capacity to the former employee;

    3. If the person contacted requests a personal attorney or the company's ~adverse party's] attorney, that request must be honored;

    4. The attorney must advise the former employees they have the right to refuse to be interviewed or, if they wish, to be interviewed with the company's counsel present.

  4. Should the expert be considered to be plaintiff's counsel's agent, your actions could trigger a need by opposing counsel for remedial action (which could impact negatively on your client) as required by Rule 5.3(c) (2).

  5. The decision in Opinion 93-378 turns on the language of Model Rule 3.4(c) prohibiting a lawyer from "knowingly disobeying an obligation under the rules of a tribunal ...." The ABA felt that in view of the explicit two-step process for expert witness discovery prescribed by Rule 26(b)(4)(A) of the Federal Rules of Civil Procedure, it was probably a violation of Rule 3.4(c) to make ex parte contacts with experts in a "tribunal" having a clear-cut scheme for expert discovery, such as the federal courts and state courts with similar discovery mechanisms. For whatever reasons, Rule 3.4(c) was not adopted in Pennsylvania's Rules of Professional Conduct, notwithstanding a common antecedent in DR 7-106(A) of the prior Code of Professional Responsibility.

   

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.