The Professional Ethics Committee for the State Bar of Texas recently advised that it is impermissible for lawyers to disclose confidential information to a prospective expert or retain an expert for the sole purpose of disqualifying the expert from working for the opposing party.
The opinion presents a statement of facts in which a lawyer has already retained an expert for a highly specialized issue in a litigation matter. The case requires expert analysis and testimony that is only available from a few experts. The lawyer then contacts a second expert, stating that the lawyer is interviewing prospective experts despite having no intention of using the expert. Rather the lawyer is speaking to the second expert for the sole purpose of disqualifying the second him from working for the opposing party.
The Committee advised that when a lawyer discloses confidential information to an expert in the course of interviewing the expert, that expert is disqualified from working for the opposing party. The Committee further noted that “[t]he test for disqualification does not require formal retention by the first party.”
The Committee applied Rule 4.04(a) of the Texas Disciplinary Rules of Professional Conduct which provides: “In representing a client, 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.” The Committee then referenced Texas Professional Ethics Opinion 585 which applied Rule 4.04(a) to conclude that a lawyer may not tell a client to hire all the local lawyers in a community if the lawyer’s only purpose was to delay or burden the opposing party.
Finally, the Committee concluded that “Rule 4.04(a) prohibits a lawyer from retaining an expert or communicating confidential information to a potential expert when the lawyer has no substantial purpose other than to delay or burden the opposing party by impeding the opposing party’s access to a limited pool of potential experts.”
The Committee also noted that lawyers engaging in behavior to disqualify experts may also violate Rules 4.01 (prohibiting false statements to third parties) and Rule 8.04(a)(3) (prohibiting dishonest, fraudulent, or deceitful conduct as well as misrepresentation).
The Committee further advised that whether a lawyer has acted substantially for the purpose of preventing the opposing party from utilizing an expert is a question of fact to be determined on a case-by-case basis. Thus, simply interviewing additional experts after having retained an expert will not inherently violate Rule 4.04(a) unless it is done maliciously.
Read the opinion here.
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