In a civil case, can a lawyer contact the opposing side's fact witnesses or retained expert without notice, and can the lawyer try to persuade a witness not to testify?

Plain-English summary

While preparing a civil case in state or federal court, a lawyer learns the identity of a fact witness and an expert retained by opposing counsel. The opinion answers three questions: whether the lawyer may contact the fact witness without notice or consent (yes, qualified), whether the lawyer may contact the expert without notice or consent (no in federal civil litigation; for state civil litigation, see discussion), and whether the lawyer may attempt to dissuade either witness from testifying (no). This opinion replaces OSB Formal Ethics Op. No. 2005-118.

On fact witnesses, the opinion explains that neither Oregon nor federal statutes, cases, or court rules prohibit a lawyer from contacting unrepresented fact witnesses, and the existence of formal discovery does not foreclose other lawful methods of gathering information. On experts, the result depends on the forum: FRCP 26(b)(4) limits discovery of retained experts to specified means, and the Ninth Circuit has read it to bar contact with adverse testifying experts, so such contact in federal civil litigation would violate the tribunal's rules and Oregon RPC 3.4(c) and would prejudice the administration of justice under Oregon RPC 8.4(a)(4). Oregon has no equivalent to FRCP 26(b)(4), so contact with adverse experts in state civil litigation does not violate Oregon RPC 3.3(a)(5) or 3.4(c); the opinion cautions, however, that an expert not retained to testify is a representative of the lawyer whose opinions are privileged, and unauthorized efforts to discover those would prejudice the administration of justice.

On dissuading witnesses, the opinion states that even permitted ex parte contact has limits: a lawyer may not misrepresent the interviewer's identity or motive (Oregon RPC 4.3, 8.4(a)(3)) or use harassing techniques (Oregon RPC 4.4(a)). A lawyer may not influence a witness by improper means or offer payment contingent on testimony or outcome (Oregon RPC 3.4(b)), and attempting to persuade a witness not to testify is prejudicial to the administration of justice (Oregon RPC 8.4(a)(4)) and runs into Oregon RPC 3.4(f)'s bar on advising or causing a person to secrete themselves; even an unsuccessful attempt is prejudicial.

In practice

The opinion holds that, under the Oregon rules as they stood at the time, witness contact in civil litigation breaks into three answers: fact witnesses are fair game if unrepresented, retained experts are off-limits in federal court but not barred by any Oregon rule in state court, and dissuading any witness from testifying is always prohibited. Per the opinion, the expert answer turns on whether a discovery rule like FRCP 26(b)(4) governs the forum, and the contact answer is always bounded by the bars on misrepresentation, harassment, improper inducements, and interfering with a witness's availability. Verify the current text of Oregon RPC 3.4, 4.3, 4.4, and 8.4 before relying on any specific point.

Common questions

Q: Can a lawyer interview the other side's fact witnesses without telling opposing counsel?

A: Yes, qualified. The opinion concludes a lawyer may contact unrepresented adverse fact witnesses, because no statute or rule prohibits it and informal information-gathering is allowed alongside formal discovery.

Q: Can a lawyer contact the opposing party's retained expert in a civil case?

A: It depends on the forum. The opinion concludes such contact is barred in federal civil litigation under FRCP 26(b)(4) and Oregon RPC 3.4(c), but no Oregon rule prohibits it in state civil litigation.

Q: Can a lawyer try to talk a witness out of testifying?

A: No. The opinion concludes attempting to dissuade a witness is prejudicial to the administration of justice under Oregon RPC 8.4(a)(4) and implicates Oregon RPC 3.4(f), and even an unsuccessful attempt is prejudicial.

Background and rules framework

The opinion interprets Oregon RPC 3.4(b), (c), and (f) (fairness to opposing party and counsel), Oregon RPC 3.3(a)(5), Oregon RPC 4.3 and 4.4(a) (unrepresented persons and harassment), and Oregon RPC 8.4(a)(3) and (a)(4), corresponding to Model Rules 3.3, 3.4, 4.4, and 8.4, with reference to FRCP 26(b)(4) and OEC 503(1)(e).

Citations and references

Rules of Professional Conduct:

• Oregon RPC 3.4(b), (c), (f) / Model Rule 3.4 (fairness to opposing party and counsel)
• Oregon RPC 3.3(a)(5) / Model Rule 3.3 (candor)
• Oregon RPC 4.3, 4.4(a) / Model Rules 4.3, 4.4 (unrepresented persons; harassment)
• Oregon RPC 8.4(a)(3), (a)(4) / Model Rule 8.4 (misrepresentation; prejudice to justice)

Cases:

• Campbell Indus. v. M/V Gemini, 619 F2d 24 (9th Cir 1980)
• In re Chambers, 292 Or 670, 642 P2d 286 (1982)
• In re Boothe, 303 Or 643, 740 P2d 785 (1987)

Other opinions cited:

• OSB Formal Ethics Op. No. 2005-131 (adverse experts in criminal cases)
• OSB Formal Ethics Op. No. 2005-118 (replaced by this opinion)

See also

• OSB Ethics Op. 2005-131: Contacting an Adverse Expert in a Criminal Case
• OSB Ethics Op. 2005-80: Contacting Corporate Employees
• OSB Ethics Op. 2005-126: Contacting Represented Defendants in Prosecutions

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-132.pdf