May a California lawyer represent to opposing counsel and the court that an expert witness has been retained when discussions and a proposed engagement letter exist but no contract has been signed, and what duty arises if the expert later revokes consent to designation?

Currency note

This opinion was issued in 1995, before California's November 1, 2018 adoption of the renumbered Rules of Professional Conduct. Former Rule 5-200 corresponds to current Rule 3.3 (candor to the tribunal). California Code of Civil Procedure section 2034 was reorganized into sections 2034.010 et seq. Subsequent rule amendments or 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 Treat this page as historical context, not current guidance.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.

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Plain-English summary

The committee considered an attorney who telephoned an expert witness, discussed the case and fees, verbally agreed to retain the expert, and learned the expert would mail a written retainer contract. The attorney later formally designated the expert and notified opposing counsel, but did not execute the retainer or make any payment until certain the expert was needed. The expert objected. The attorney continued to equivocate, did not execute the retainer, but also did not withdraw the designation and continued to represent to opposing counsel that the expert had been retained.

The committee identified Rule 5-200(A)-(B) as requiring that means used to maintain a cause be consistent with truth and prohibiting attempts to mislead the tribunal by artifice or false statement. The committee identified section 6068(d) as imposing the same duty. The committee identified Code of Civil Procedure section 2034 and Federal Rule of Civil Procedure 26(a)(2) as requiring formal disclosure of expert names, with designations signed under penalty of perjury.

The committee identified the representation that one has retained an expert as a material statement of fact relevant to negotiations and a "bargaining chip." So long as the attorney had a recent intention to use the expert and the expert had agreed, the committee identified no ethical impropriety in designating the expert and informing opposing counsel. The committee identified the attorney as truthful with the expert at the initial stage because both believed there was a meeting of the minds.

The committee distinguished the post-revocation period. Once the expert revoked the implied authority to designate, the attorney could not continue to use the expert's name; once revocation became explicit or was conditioned on a signed agreement that did not materialize, the attorney had a duty immediately to inform the court and opposing counsel. The committee identified continued use of the expert's name after revocation as a misrepresentation violating both section 6068(d) and Rule 5-200(B). The committee further identified that leaving an outdated designation on file with the court (a representation true when made but later false) similarly violates both provisions.

In footnotes, the committee identified the better practice as obtaining a written agreement before designation; identified the parallel duty of truthfulness in payment matters (Alkow v. State Bar); and identified that the attorney's truthfulness duty extends to the public, citing In the Matter of Lilly, In the Matter of Taylor, and McKinney v. State Bar.

Common questions

Q: Can a California lawyer designate an expert and tell opposing counsel the expert is retained before a written contract is signed?

A: Per the opinion, yes, when based on a good-faith belief grounded in extensive discussions and a proposed engagement letter from the expert. The committee identified that the better practice is to obtain a written agreement before designation.

Q: What if the expert later objects or refuses to perform without a signed contract?

A: Per the opinion, once the expert revokes the implied authority to designate (or makes designation conditional on a signed agreement that has not been signed), the attorney must immediately inform the court and opposing counsel and may not continue to use the expert's name.

Q: Does failing to withdraw a court designation that has become false violate the rules?

A: Per the opinion, yes. The committee identified leaving an outdated designation in place as creating a representation that, true when made, has become false; the attorney must immediately inform the court and counsel. Failure to do so violates Rule 5-200(B) and section 6068(d).

Q: Does this committee opinion address contract or tort liability to the expert?

A: Per the opinion, no. The committee limited its advice to ethical obligations and observed (in a footnote) that contract and tort issues could create separate liability not addressed by the opinion.

Background and rules framework

The opinion interprets former California Rule of Professional Conduct 5-200(A)-(B) (truthfulness to the tribunal), with Business and Professions Code section 6068(d) (duty not to mislead the tribunal). California Code of Civil Procedure section 2034 and Federal Rule of Civil Procedure 26(a)(2) are referenced for expert-disclosure requirements; designations are signed under penalty of perjury, which the committee identified as raising the truthfulness duty.

Citations and references

Rules of Professional Conduct (former):

• California Rule 5-200 (truthfulness to the tribunal)

Statutes:

• California Business and Professions Code section 6068(d)
• California Code of Civil Procedure section 2034
• Federal Rule of Civil Procedure 26(a)(2)

Cases:

• Alkow v. State Bar, 38 Cal.2d 257 (Cal. 1952), duty of truthfulness in payment matters
• In the Matter of Farrell, 1 Cal. State Bar Ct. Rptr. 490 (Rev. Dept. 1991)
• In the Matter of Lilly, 2 Cal. State Bar Ct. Rptr. 185 (Rev. Dept. 1992)
• In the Matter of Taylor, 1 Cal. State Bar Ct. Rptr. 563 (Rev. Dept. 1991)
• McKinney v. State Bar, 62 Cal.2d 194 (Cal. 1964)

Other opinions cited:

• State Bar Formal Opinion 1979-48

See also

• LACBA Opinion 497: Consulting With Client During Deposition
• LACBA Opinion 490: Ex Parte Communications With Represented Parties and Witnesses
• LACBA Opinion 483: Limited Representation of Pro Per Litigants

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010938