State Bar of Arizona Ethics Opinions

94-13: Former Client; Expert Witness; Disclosures to Tribunal
10/1994

The inquiry pertains to ethical considerations when a lawyer previously represented a court appointed mental health professional expert witness several years ago in an unrelated matter. The Opinion concluded that the lawyer: 1) is not required to disclose the prior representation absent some showing that the former relationship predisposes the expert in some unusual way to favor the expert's former attorney; and 2) need not withdraw from the present representation unless there is some unusual bias on the expert's part or the lawyer is restricted in cross-examining the expert due to the prior representation.



FACTS[1]

The inquiring attorney has acquired significant experience in the field of domestic relations custody disputes. In a large number of cases in this area the court regularly appoints mental health professionals to conduct full custody/visitation evaluations. The court maintains a list of such professionals who have applied for and meet the requirements to serve as court-appointed expert witnesses. Although the list contains the names of a number of qualified health professionals, because of their experience in the role, only five or six of them regularly are appointed by the court to conduct the evaluations and to testify. Moreover, because of their experience, and because attorneys practicing in this field desire their appointments, the services of these health professionals are very much in demand.

The inquiring attorney represented one of these five or six experienced mental health professionals approximately fourteen years ago, in a matter unrelated to the attorney's current representation of clients in custody disputes. In the belief that it was required by the Rules of Professional Conduct, the inquiring attorney disclosed to opposing counsel the former client relationship with the health professional, when that health professional was appointed to serve in one of the inquiring attorney's cases. At least on one occasion, opposing counsel objected to the inquiring attorney's "use" of the expert ( even though the Committee understands that the expert is appointed by the court, and not "retained" by the attorney ), and the inquiring attorney thereupon presumably asked the court to appoint another expert. Given the limited availability of the few recognized experts in this area, the inquiring attorney believes that the elimination of even one of them results in prejudice to his clients.

The inquiring attorney has asked whether he ethically must disclose the former client relationship to opposing counsel when the former client is appointed to serve as an expert in his cases.

 

QUESTIONS PRESENTED

1. Do the Rules of Professional Conduct require an attorney to disclose the attorney's prior representation of a court appointed expert witness?

2. Do the Rules of Professional Conduct require an attorney to request that the court replace a court appointed expert formerly represented by the attorney?

3. Do the Rules of Professional Conduct require an attorney to withdraw from representation in a case where the attorney formerly represented the expert appointed by the court in the present case?

 

ETHICAL RULES

E.R. 1.6                 Confidentiality of Information

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a)(2).

(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.

(c) A lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime.

(d) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceedings concerning the lawyer's representation of the client.

 

E.R. 1.7                 Conflict of Interest: General Rule

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client;

(2) each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

 

ER 1.9                    Conflict of Interest: Former Client

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or

(b) use information relating to the representation to the disadvantage of the former client except as ER 1.6 would permit with respect to a client or when the information has become generally known.

 

ER 3.3                    Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) except as required by applicable law, fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(4) except as required by applicable law, offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by ER 1.6.

(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

 

E.R. 3.4                 Fairness to Opposing Party and Counsel

A lawyer shall not:

(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists

(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;

(e) in trial allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

 

ER 8.4.                   Misconduct

It is a professional misconduct for a lawyer to:

(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

 

OPINION

 

Disclosure of former client relationship

The first question presented is whether the Rules of Professional Conduct require an attorney to disclose a former client relationship with a court appointed expert in a case in which the attorney represents a client. The general rule of confidentiality governing attorneys is set out in ER 1.6. This rule broadly prohibits a lawyer from revealing "information relating to representation of a client unless the client consents after consultation," subject to certain exceptions not applicable to the circumstances described by the inquiring attorney. Thus, unless another Rule of Professional Conduct creates an exception to ER 1.6, or effectively "trumps" ER 1.6 because of some consideration overriding the principle of confidentiality, ER 1.6 arguably ends the inquiry (and without having to examine such issues as whether the rule covers the disclosure of the name of the client or fact of representation).

ER 3.3 requires "Candor Toward the Tribunal." Because the expert in the circumstances described by the inquiring attorney is appointed by the court, one might consider that the attorney's former representation of the expert requires the attorney to inform at least the court of the former representation. Nonetheless, this rule is precise in its enumeration of the circumstances in which such candor is required. None of ER 3.3's subparts addresses the disclosure question at issue in this inquiry.

ER 3.4 addresses a lawyer's duty of "fairness to opposing party and counsel." This rule likewise is explicit in its prescriptions, and it is the view of the Committee that it does not require disclosure by the attorney of his former client relationship with a court appointed expert. It should be noted, however, that the failure voluntarily to disclose the relationship is not the same as its concealment. If the relationships of the court appointed expert with the parties or counsel, past and present, are considered to bear on the credibility of the expert, opposing counsel may be permitted to take discovery or cross-examine the expert with respect to them.[2]

ER 8.4(c) and (d) respectively make it professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation," or to "engage in conduct that is prejudicial to the administration of justice." It is the opinion of the Committee that the failure of an attorney voluntarily to disclose his former representation of a court appointed expert is not an act of fraud or deceit, and is not prejudicial to the administration of justice, as that phrase was meant to be construed by its drafters. The Comment to the Rule refers to such offenses as "violence, dishonesty, or breach of trust, or serious interference with the administration of justice."

At the heart of the inquiry is the effect of the relationship on the expert's candor and objectivity. Absent some showing that the former client relationship disposes the expert in some unusual way to favor the expert's former attorney, it is the Committee's view that the relationship alone, without more, is not sufficient to establish an a priori rule that the failure to disclose the existence of such a relationship will seriously interfere with the administration of justice. Indeed, the attorney's former retention of the expert in other cases (rather than the other way around) arguably presents a more substantial basis for presuming bias on the part of the expert, i.e., the expert's expectation of future engagements. The Committee can express no views on the grounds for expert disqualification, but observes that attorneys' prior retentions of experts ordinarily are not grounds for excluding the experts' testimony.

 

Request to replace court appointed expert formerly represented by attorney

Even if the Rules of Professional Conduct do not require the voluntary disclosure by an attorney of her prior representation of a court appointed expert, do they require that the attorney ask the court to appoint a second expert, to replace the former client expert?

The Rules of Professional Conduct do not address this precise question, and it is beyond the Committee's jurisdiction to express any views on the grounds for removal or replacement of a court appointed expert. Therefore, the Committee will address the question whether there are any circumstances in which an attorney who formerly represented a court appointed expert must withdraw from representation of her current client in the case to which the expert has been appointed.

 

Withdrawal from representation

There are at least two circumstances that may require the attorney to withdraw from his current representation. First, if the lawyer's former client relationship with the court appointed expert should, for some extraordinary reason, dispose the former client expert to favor his former attorney's client, and the attorney is uniquely aware of this disposition, failure to disclose the relationship may be regarded as "prejudicial to the administration of justice." ER 8.4(d). As noted above, however, it is the Committee's view that the attorney-client relationship alone, without more, is not a sufficient basis to conclude that the expert will maintain such a prejudicial disposition.

Second, the former representation might materially limit the lawyer's ability to represent his present client effectively in the custody dispute. ER 1.9(b), governing conflicts of interests with former clients, prohibits a lawyer who formerly represented a client from using "information relating to the representation to the disadvantage of the former client," subject to certain inapplicable exceptions.[3]  See Arizona Opinion 91-05 (Feb. 20, 1991). ER 1.7 (b) provides that “[a] lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interests. .." If the attorney, under ER 1.9(b), is prohibited from "using" information relating to the former representation, for example, for impeachment purposes, the lawyer's representation of her current client may be impaired. Therefore, the lawyer's duty under ER 1.9(b) not to use information relating to the prior representation, to the former client's disadvantage, may impede his ability effectively to represent his present client. Thus, if the former representation provided the lawyer with information she would ordinarily use to cross-examine the expert, but which she is prohibited from using by ER 1.9, the lawyer will be required by ER 1.7(b) to withdraw from the current representation, unless the former client expert consents to the use of the information.[4]

An alternative to withdrawal might be to request that the court appoint another expert. As this opinion previously noted, it is beyond the Committee's jurisdiction to express an opinion on the grounds for disqualification of a court appointed expert, but the inquiring attorney has expressed concern that disqualification of one of the only five or six qualified experts, will likely result in the appointment of a less qualified expert.[5] If that is so, and the reason the attorney seeks removal of the expert is to fulfill his obligations under ER 1.9(b) (avoiding use of information obtained from the expert in the former representation), under ER 1.7(b) the attorney's representation of his client in the custody dispute must be regarded as materially limited by this responsibility, and he must therefore withdraw from the present representation.

 

Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.

©State Bar of Arizona 1994

 


[1] Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.

[2] The Committee hastens to add that by these comments it expresses no opinion on the discoverability or admissibility of the former representation, but assumes its relevance for purposes of the inquiring attorney's inquiry and the Committee's analysis of the attorney's duties.

[3] Since the former representation of the expert, and the attorney's present engagement in the proceedings in which the expert has been appointed are by hypothesis wholly unrelated, ER 1.9 does not ordinarily prohibit the lawyer from cross-examining his former client. It is the exception to the hypothesis that is addressed in the text.

[4] Whether it is appropriate for the lawyer to ask his former client to consent to the use of such information is beyond the scope of this opinion. The Committee merely notes that as with all consents to conflicts of interest, the "disinterested lawyer" standard applies. See Comment to ER 1.7. The answer will depend on the nature of the information subject to the request, and the consequences that might flow from its use or disclosure. Moreover, it may be appropriate to advise the former client to seek the advice of independent counsel on the issue of such consent.

[5] Although opposing counsel who learns of her adversary's former representation of the court appointed expert may request the court to replace the appointed expert, one might expect her to take this consideration into account before moving to disqualify. The court might also take this factor into consideration in deciding the request.

 




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