Can a lawyer in a civil case contact the other side's retained expert witness directly, without first getting the opposing counsel's permission?

Plain-English summary

The committee was asked whether a lawyer in a civil matter may initiate ex parte contact with an expert witness retained to testify for the opposing party, without first obtaining permission from opposing counsel. It found that no Model Rule directly addresses the question, but that the conduct implicates Rules 3.4(b), 3.4(c), 3.4(f), 4.1(a), 4.2, and 4.3.

The opinion's central point is that the ethical answer is keyed to the procedural rules of the forum. Rule 3.4(c) bars a lawyer from "knowingly disobey[ing] an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists." Where a jurisdiction has adopted an expert-discovery rule patterned on Federal Rule of Civil Procedure 26(b)(4)(A), which channels discovery of an opposing party's trial experts through interrogatories and depositions rather than informal contact, ex parte contact with that expert can amount to knowingly disobeying an obligation under the rules of the tribunal, and so violate Rule 3.4(c). Absent such a procedural rule, the Model Rules do not themselves forbid the contact.

The committee also flagged the related provisions that bracket such contact: Rule 3.4(f) (a lawyer generally may not ask a non-client to refrain from voluntarily giving relevant information to another party), Rule 4.1(a) (truthfulness in statements to others), Rule 4.2 (communication with a represented person), and Rule 4.3 (dealing with an unrepresented person). The opinion noted the predecessor Code provisions, including DR 7-106's prohibition on disregarding a standing rule of a tribunal, as the analogues for the Rule 3.4(c) analysis.

Currency note

This opinion was issued in 1993, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct, and the Federal Rule of Civil Procedure 26 expert-discovery provisions it relies on have since been amended. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is it always unethical to contact the other side's expert witness directly?

A: No. The opinion concluded the Model Rules do not flatly prohibit ex parte contact with an opposing party's expert; the problem arises from the forum's discovery rules, not from the Model Rules alone.

Q: When does contacting an opposing expert cross the line?

A: The committee held it may violate Rule 3.4(c) when the matter is in federal court or a jurisdiction with an expert-discovery rule patterned on Federal Rule of Civil Procedure 26(b)(4)(A), because the contact would disobey an obligation under the tribunal's rules.

Q: Which other rules should a lawyer keep in mind for such contacts?

A: The opinion pointed to Rule 3.4(f) (asking a non-client to withhold information), Rule 4.1(a) (truthfulness), Rule 4.2 (represented persons), and Rule 4.3 (unrepresented persons).

Background and rules framework

The opinion interpreted Rule 3.4 (fairness to opposing party and counsel), centering on subsection (c)'s prohibition on knowingly disobeying an obligation under the rules of a tribunal, and read it together with the forum's expert-discovery procedures (Federal Rule of Civil Procedure 26(b)(4)(A) and state analogues). It also identified Rules 3.4(f), 4.1(a), 4.2, and 4.3 as related provisions. Because the ABA interprets the Model Rules directly, there is no state-rule analogue.

Citations and references

Rules of Professional Conduct:

• MR 3.4 (fairness to opposing party and counsel; subsections (b), (c), (f))
• MR 4.1 (truthfulness in statements to others)
• MR 4.2 (communication with person represented by counsel)
• MR 4.3 (dealing with unrepresented person)

Statutes and rules:

• Federal Rule of Civil Procedure 26(b)(4)(A): channels discovery of an opposing party's trial experts through formal procedures

See also

• ABA Formal Op. 96-402: Propriety of payments to occurrence witnesses
• ABA Formal Op. 91-359: Contact with a former employee of an adverse corporate party

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 93-378.pdf