May a lawyer make ex parte contact with an expert witness or consultant retained by opposing counsel?

Plain-English summary

The Committee took up several requests to reconsider Ethics Opinion 84-8, which had held that nondeceptive ex parte attorney communications with expert witnesses or consultants retained by an adverse party were not prohibited by the Code of Professional Responsibility. The requests urged that 84-8 had not accounted for Alaska Civil Rule 26(b)(4), which sets out the method for formal discovery of facts known and opinions held by experts acquired in anticipation of litigation. The Committee noted it had in fact considered that rule, and that 84-8 was meant to reach only the initial ex parte contact (after which the expert could agree or decline to talk, and the retaining attorney could direct the expert not to discuss the case), not the requirements of formal discovery.

The opinion concluded that subsequent developments revealed serious inherent problems with the procedure 84-8 approved. It pointed to three: a Ninth Circuit decision (later vacated) indicating that ex parte contacts with an opposing party's confidential employee and expert could support disqualification, on the rationale that doubts should be resolved in favor of disqualification to protect the parties and the integrity of the courts; a June 13, 1985 Bar memorandum reporting that the Disciplinary Board had privately reprimanded an attorney for using a subpoena without notice as a discovery device, in violation of DR 1-102(A)(5) and DR 7-106(C)(7), which suggested that operating outside Civil Rule 26(b)(4) raised similar concerns; and reports that 84-8 had been used to justify approaches to experts never intended to be permitted, including telling experts they were "required" to discuss their testimony, with one less experienced expert sending opposing counsel his report and underlying data before his own retaining attorney had seen them.

On reconsideration in light of those developments, the opinion vacated Ethics Opinion 84-8. It concluded that ex parte contacts should not be made with expert witnesses retained by an opposing counsel or party, and that discovery from experts to whom Alaska Civil Rule 26(b)(4) applies should be done only in a manner agreed upon in advance with opposing counsel or in the manner the rule sets out.

Currency note

This opinion was issued in 1985, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility) and before the 2009 revisions to those rules. The cited civil rule and case law may since have changed, and the underlying Ninth Circuit decision it discussed was itself later vacated. Treat this page as historical context, not current guidance. Verify against current rules and the current Civil Rules before relying on any specific rule or procedure mentioned here.

Common questions

Q: May a lawyer contact an opposing party's retained expert ex parte?

A: The opinion concluded, vacating its earlier Opinion 84-8, that ex parte contacts should not be made with expert witnesses retained by opposing counsel or the opposing party.

Q: How should a lawyer obtain information from an opponent's expert?

A: The opinion concluded that discovery from experts covered by Alaska Civil Rule 26(b)(4) should be done only by agreement reached in advance with opposing counsel or in the manner that rule prescribes.

Q: What did the opinion do to Ethics Opinion 84-8?

A: It vacated Opinion 84-8, finding that subsequent developments, including disqualification case law and a disciplinary reprimand for circumventing the discovery rules, showed the earlier approach had serious inherent problems.

Background and rules framework

The opinion reconsidered an earlier ethics opinion against the backdrop of Alaska Civil Rule 26(b)(4), which governs formal discovery from experts, and the Code of Professional Responsibility's prohibitions on conduct prejudicial to the administration of justice (DR 1-102(A)(5)) and on intentionally violating an established rule of procedure (DR 7-106(C)(7)). The fairness concern it addressed is the subject now treated by Model Rule 3.4.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 1-102(A)(5) (conduct prejudicial to the administration of justice)
• DR 7-106(C)(7) (intentional violation of an established rule of procedure) (cf. Model Rule 3.4)

Rules of Civil Procedure:

• Alaska Civil Rule 26(b)(4) (formal discovery of expert facts and opinions); Fed. R. Civ. P. 26

Cases:

• American Protection Insurance Co. v. MGM Grand Hotel Las Vegas, Inc. (9th Cir. 1984) (originally 748 F.2d 1293; later vacated), ex parte contact with opposing expert and disqualification
• Trone v. Smith, 621 F.2d 994 (9th Cir. 1980); Board of Education v. Nyquist, 590 F.2d 1241 (2d Cir. 1979), standards for disqualification
• Campbell Industries v. M/V Gemini, 619 F.2d 24 (9th Cir. 1980), ex parte contact with opposing expert as violation of Rule 26

Other opinions cited:

• Alaska Ethics Opinion 84-8 (vacated by this opinion)

See also

• Alaska Ethics Op. 85-3: Firm Calling a Former Associate as a Witness
• Alaska Ethics Op. 93-2: Compensating Witnesses
• Alaska Ethics Op. 88-4: Instructing Court Reporters on Transcripts
• Alaska Ethics Op. 2019-1: Obtaining Confidential Information

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/85-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 85-2
Ex Parte Communication with Experts Retained by Opposing Counsel.
The Committee has received several requests for reconsideration of
Ethics Opinion 84-8, which holds that nondeceptive ex parte attorney
communications with expert witnesses or consultants retained by an adverse
party are not prohibited by the Code of Professional Responsibility. These
requests point out that the Committee has not considered the provisions of
Alaska Civil Rule 26(b)(4), which sets forth the method for formal discovery of
facts known and opinions held by experts, acquired or developed in
anticipation of litigation or for trial. Actually, the Committee did consider
Alaska Civil Rule 26(b)(4) in its issuance of Ethics Opinion 84-8.
Ethics Opinion 84-8 was intended to deal only with the initial ex parte
contact, and not with the requirements of formal discovery. The procedure
envisioned was that the initial ex parte contact could be made. At that point
the expert could either consent to or decline to talk to opposing counsel. The
attorney hiring the expert could protect against disclosure of information by
directing the expert not to discuss the case with other persons.
Subsequent to the issuance of Ethics Opinion 84-8, certain things have
taken place which have convinced the Committee that the procedure approved
in Ethics Opinion 84-8 has serious inherent problems. Three developments
have taken place since the issuance of Ethics Opinion 84-8, which militate
against the procedure approved in that opinion, as follows:
(1) The Ninth Circuit Court of Appeal in American Protection Insurance Co. v.
MGM Grand Hotel Las Vegas, Inc., No. 83-2674, 83-2728 (December 3, 1984),
stated that a law firm could be disqualified from representing its client because of
ex parte contacts made with a confidential employee and expert witness of the
opposing party. The court recognized that ex parte contacts may result in the
disclosure of confidential information to the opposing parties. The party seeking
disqualification must show only a possibility or the appearance of the possibility
of obtaining confidential information in order to obtain disqualification. (Trone v.
Smith, 621 F.2d 994, 1001 (9th Cir. 1980)) The Second Circuit, in fact, has held
that disqualification is required where an attorney is only potentially in a position
to use privileged information. (Board of Education v. Nyquist, 590 F.2d 1241,
1246 (2d Cir. 1979)) In American Protection Ins. Co., the Ninth Circuit stated that
the District Court should resolve doubts in favor of disqualification - not only to
protect the parties involved, but also the integrity of the courts and the public
perception of the legal profession. (see endnote 1)
(2) On June 13, 1985, the Alaska Bar Association circulated a memorandum to all
members pointing out that the Disciplinary Board had recently privately
reprimanded an attorney for using a subpoena as a discovery device to obtain
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materials from a nonparty. The subpoena was not accompanied by a notice of
deposition, and no notice was provided to the parties to the case. The Disciplinary
Board found that the attorney had intentionally circumvented the Civil Rules to
obtain possession of documents to which he might otherwise have been denied
access, had the Civil Rules been followed. The Board found that the attorney's
conduct violated Disciplinary Rule 1-102(A)(5), which prohibits conduct that is
prejudicial to the administration of justice, and Disciplinary Rule 7-106(C)(7), in
that he intentionally violated an established rule of procedure. The purpose of the
memorandum was to notify all attorneys that subpoena without notice, as a
discovery device, was improper.
Since Civil Rule 26(b)(4) provides the approved method of obtaining
formal discovery from expert witnesses, it would appear that operating outside
of that rule may also violate the rationale of the June 13, 1985, memorandum.
(3) Ethics Opinion 84-8 has apparently been used to justify approaches to expert
witnesses which were never intended to be permitted. One of the requests for
reconsideration pointed out a situation where the opposing counsel had contacted
several of the attorney's retained experts and repeatedly asserted to them that they
were "required" to discuss their testimony with him. The experts were dismayed,
confused, and in one case outraged, by being contacted. Most experts refused to
discuss the case. However, one expert, not as sophisticated or experienced as the
others, apparently sent the opposing counsel a copy of his expert report and
underlying factual data before these had even been seen by the attorney who
retained the expert.
Accordingly, upon reconsideration in light of subsequent events, Ethics
Opinion 84-8 is vacated. Ex parte contacts should not be made with expert
witnesses retained by an opposing counsel or party. Discovery from expert
witnesses to whom Alaska Civil Rule 26 (b)(4). applies shall be done only in a
manner agreed upon in advance with opposing counsel or in the manner set
forth in Alaska Civil Rule 26(b)(4).
Adopted by the Alaska Bar Association Ethics Committee on August 8, 1985.
Approved by the Board of Governors on August 23, 1985.
Endnotes

1. The opinion in American Protection Co. v. MGM Grand Hotel Las Vegas, Inc.

was originally reported at 748 F.2d 1293. The opinion itself was subsequently
vacated by the Ninth Circuit, and the appeal dismissed. However, the rationale
of the opinion, and the fact that ex parte contacts should result in
disqualification if there is only a possibility or the appearance of the possibility
of obtaining confidential information, militates strongly against allowing ex
parte contacts with retained experts. In Marine Petroleum Co. v. Champlin
Petroleum Co., 641 F.2d 984 (D.C. Cir. 1979), the court did not consider
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whether ex parte contacts with an expert would be permissible, but the
rationale of the opinion appears to prohibit them. Finally, in Campbell
Industries v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980), the Ninth Circuit
upheld the District Court's finding that an attorney's ex parte contact with an
opposing party's expert was a flagrant violation of the provisions of Federal
Rule of Civil Procedure 26, deserving strong sanction.

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