Opinion 577

Opinion 577

10.29.1986

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION

Committee on Professional Ethics

Opinion #577 – 10/29/1986 (19-86
)Topic: Interviewing expert witness of adversary
Digest: Not improper to communicate with expert witness retained by adversary without knowledge or consent of opposing counsel
Code: DR 1-102(A)(5); DR 7-104(A)(1)

QUESTION

May an attorney communicate with an expert witness retained by an adversary without the knowledge permission, or consent of opposing counsel?

OPINION

The starting place for this inquiry is DR 7-104(A)(1) of the Code of Professional Responsibility, which provides as follows:’A. During the course of his representation of a client a lawyers shall not:1. Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so,”This provision is designed to insulate parties represented by counsel from direct communication with an opposing attorney. “In the interests of fair play and expeditious resolution of disputes, the legal system functions best when communications between represented adversaries are controlled by their counsel” ABA Inf. 1496 (1983).The resolution of the question now presented depends upon whether an expert witness retained by a party in an adversarial context is “a party represented by a lawyer” within the meaning of DR 7-104(A)(1) The American Bar Association ethics committee has stated that “[g]enerally a lawyer may properly interview witnesses or prospective witnesses for opposing sides in any civil or criminal action without the prior consent of opposing counsel – unless such person is a party.” ABA Int. 1410 (1978). This Committee also has expressed the view that communication with non-party adverse witnesses without the consent of opposing counsel is ethically permissible under the Code of Professional Responsibility. NY State 245 (1972).This brings us to the principal focus of the inquiry: whether a retained expert witness is distinguishable from an ordinary witness under DR 7-104? We are unaware of any ethical rule or policy which would justify a different interpretation of DR 7-104(A)(1) for non-party, retained expert witnesses. We, therefore, are of the opinion that communication with such individuals is ethically permissible. Accord, Alaska Op. 84-8 (1984) (lawyer may communicate ex parte with expert witness or consultant retained by adverse party); Wisconsin Op. 83-13 (general rule permitting lawyer to communicate with intended witnesses of other party without consent of opposing counsel encompasses expert witnesses).We add, however, that, while ex parte communication by a lawyer with the adversary’s retained expert is permissible, it would unethical for the lawyer to attempt to discover through such communication matters protected by an evidentiary or work product privilege. See, DR 1-102(A)(5)It should be noted that New York State’s Civil Practice Law and Rules § 3101(d)(1) and Federal Rule of Civil Procedure 26(b)(4) set forth procedures for and govern the scope of discovery of expert witnesses. Because matters of law are beyond the authority of this Committee, we express no opinion on the application of these statutes and rules to ex parte communications with an adverse party’s expert witness, or whether such conduct might violate court rules or policies relating to discovery and disclosure.. See, Campbell Industries v. M/V Gemini, 619 F. 2d, 27 (9th Cir. 1980) (counsel’s ex parte communications with expert witness retained by adversary violated Rule 26(b) (4) of the Federal Rules of Civil Procedure).For the reasons stated, the question posed is answered in the affirmative.