Ezel / Ethics Opinions / OSB
OSB August 2005

In a state criminal case, may a prosecutor or a defense lawyer contact the other side's designated expert witness about the subject of the expert's anticipated testimony?

Short answer: Yes, for both. No professional-conduct rule directly governs contacting an opposing testifying witness, so the question turns on the criminal-discovery statutes, which favor access to witnesses and treat an expert designated to testify as not a representative of the lawyer; contact with the other side's testifying expert is therefore permitted, though a lawyer may not mislead the expert about privileges.

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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2005
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

In a state criminal case, defense counsel discloses an expert witness intended to testify, sometimes with a summary or written report, and the prosecutor furnishes analogous information about a prosecution witness. The opinion asks whether each side may contact the other side's expert about the subject of the anticipated testimony, and answers yes to both, assuming the expert is not represented by counsel.

The opinion explains that no rule of professional conduct expressly governs contact between a litigating lawyer and a witness designated to testify for the other side, so any ethical violation would be derivative of the criminal-discovery statutes and court rules, through Oregon RPC 3.4(c) (not knowingly disobeying a tribunal's rules) and 3.3(a)(5). The Oregon criminal-discovery statutes (ORS 135.815, 135.835) require both sides to disclose witnesses and were intended to end "trials by ambush," and the Oregon courts have held that impeding access to disclosed witnesses violates those statutes. The opinion notes the work-product exception in ORS 135.855(1)(a), but explains that, under the commentary to OEC 503(1)(e), an expert employed to testify is not considered a representative of the lawyer, so contact with an adverse testifying expert is not prohibited.

The opinion concludes that in state criminal cases, contact with the opposing side's designated expert is neither expressly nor impliedly prohibited but is encouraged, so both prosecutor and defense may contact adverse experts to learn their findings and opinions. It adds two limits: required disclosure and the right to contact do not waive applicable privileges for matters outside the anticipated testimony, and a lawyer may not mislead an expert into thinking a physician-patient, psychotherapist, or other privilege no longer applies, which would violate Oregon RPC 8.4(a)(3).

In practice

The opinion holds that, under the Oregon rules as they stood at the time, the criminal-discovery statutes' policy of open access controls: contacting the other side's testifying expert is permitted in state criminal practice, on both sides. Per the opinion, the limits are that contact does not waive unrelated privileges and that a lawyer may not misrepresent the privilege situation to the expert. The opinion notes this differs from federal civil litigation, addressed in OSB Op. 2005-132. Verify the current text of Oregon RPC 3.3, 3.4, and 8.4, and the cited statutes, before relying on any specific point.

Common questions

Q: Can a prosecutor contact the defense's expert witness before trial?

A: Yes. The opinion concludes contact with the other side's designated expert is permitted in state criminal cases, because the discovery statutes favor access and no rule prohibits it.

Q: Can the defense contact the prosecution's expert?

A: Yes. The opinion treats the question symmetrically: both prosecutor and defense may contact adverse experts to discover their findings and opinions on the subject of anticipated testimony.

Q: Are there limits on what the lawyer can say to the expert?

A: Yes. Per the opinion, the lawyer may not mislead the expert into believing a privilege no longer applies; doing so would violate Oregon RPC 8.4(a)(3), and contact does not waive privileges for matters outside the anticipated testimony.

Background and rules framework

The opinion interprets Oregon RPC 3.4(c) (not knowingly disobeying a tribunal's rules), Oregon RPC 3.3(a)(5), and Oregon RPC 8.4(a)(3) (dishonesty or misrepresentation), corresponding to Model Rules 3.3, 3.4, and 8.4, as derivative of the Oregon criminal-discovery statutes (ORS 135.815, 135.835, 135.855) and OEC 503(1)(e).

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 3.4(c) / Model Rule 3.4 (obeying a tribunal's rules)
  • Oregon RPC 3.3(a)(5) / Model Rule 3.3 (candor; other illegal conduct)
  • Oregon RPC 8.4(a)(3) / Model Rule 8.4 (dishonesty, fraud, deceit, misrepresentation)

Statutes:

  • ORS 135.815; ORS 135.835; ORS 135.855(1)(a) (reciprocal criminal discovery)
  • OEC 503(1)(e) (representative of the lawyer)

Cases:

  • State v. Mai, 294 Or 269, 656 P2d 315 (1982)
  • State v. Ben, 310 Or 309, 798 P2d 650 (1990)
  • State v. York, 291 Or 535, 632 P2d 1261 (1981)

See also

Source

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