The subject of legal ethics is a hot topic and one that has drawn a lot of scrutiny. However, does this apply to retained experts? As an expert witness and charter member of the Dallas branch of the Forensic Expert Witness Association (FEWA), which requires its members to abide by a voluntary code of conduct, I have been an outspoken advocate for professional ethics for expert witnesses. With the exception of licensed professionals who risk losing their license or professional certification, most experts are not required to abide by any code of ethical standards for including conflicts of interests.
The defense expert may be perceived as having a conflict of interest given that they are oft en referred and compensated by insurance companies and do not want to bite the hand that feeds them. When insurance company X provides a large percentage of an individual expert’s revenue, a conflict of interest now exists and oft en brands the expert as a hired gun.
I serve on a number of not-for-profit boards. I am sometimes called to provide an expert testimony on a case in which a fellow board member’s company is the defendant. As a result, I receive a call from the attorney charging that I have a conflict. “How so?” I ask. What exactly is the conflict? Just because we serve as members on a not-for-profit, doesn’t mean that we have a joint profit interest or other type of professional self interest. As an expert witness, I work hard to maintain a fair and balanced approach to my professional practice and recommend such to all those of my colleagues who provide expert testimony.
A friend of mine, who is not an expert witness but provides technical services as an independent walkway auditor, told me of the time he received a call from a defense attorney to test the slip resistance of a retail store chain store’s floor. However, the defense attorney learned that my friend was retained by a plaintiff attorney on a separate case to test a floor in another one of the retail chain, which suggested that my friend had a conflict of interest. Again, I ask, “How so?” Just because I have worked for a particular client in the past does not mean that I can’t work on a separate case against that same client in the future.
I have also had a lawyer call me to discuss a possible retention, but the opposing counsel retains me instead. Sadly, many attorneys fail to do conflict checks of their experts only to create a problem later on.
For example, I will get a call from a plaintiff attorney who will state, “I represent a lady who fell at a grocery store and broke her leg. Can you help?” I ask them to tell me more about the case, whereby I anticipate that he will first tell me the named parties of the suit and ask, “Do you have a conflict?” Instead, I only hear a long list of details about his case excluding the plaintiff and defendant names. He may have created a conflict for me as I have already been retained by the defendant in the case.
3 Steps Every Attorney Should Take Before Retaining an Expert
First, tell the expert who the parties are in the suit, including the plaintiff and all the defendants. If there is an insurance company that needs to approve the hiring of the expert, tell them who the firm is to prevent a conflict.
Second, disclose the opposing law firm’s name and the attorney working on the case.
Third, ask if the expert has a conflict with any of the parties. Then, provide details about the case and be assured that your expert does not have any conflicts.
Some attorneys will intentionally create a conflict of interest for an expert as a part of their legal strategy thinking. For example, if I can create a conflict for their opposing counsel’s expert, I won’t need to hire a rebuttal expert. I remember an attorney once approached me, stating he was interested in hiring me on a new case and that he would be naming me as his expert. Months later, I found out that he named me an expert only to prohibit the opposing counsel – who had retained me in a previous case – from doing likewise. The attorney who named me as his expert never actually retained me, instead I was conflicted out of the case. So much for legal ethics! Russell J. Kendzior