In a workers' compensation case, can a lawyer contact the opposing side's expert witness directly, and is notice to opposing counsel required?

Plain-English summary

During discovery in a workers' compensation proceeding, a lawyer learns the identity of an expert witness retained by opposing counsel and obtains a copy of the expert's report. The lawyer wants to contact the expert to discuss the report. The opinion addresses whether the lawyer may initiate that contact, and whether notice to opposing counsel is required. It answers the first yes, and the second no, qualified.

The opinion explains that no rule of professional conduct expressly governs contact between a litigating lawyer and an opposing side's designated expert, so any ethical violation would derive from the governing statutes, administrative regulations, and court rules as interpreted by Oregon's appellate courts. It treats OSB Formal Ethics Op. Nos. 2005-131 (criminal) and 2005-132 (civil) as supplying an analogous framework. Because no statute, regulation, or court rule restricts contact with an adverse expert in a workers' compensation matter, there is no ethical limitation on it, citing Booth v. Tektronix (contact with medical witnesses in a comp matter is permissible) and the Workers' Compensation Board's express policy of full and complete discovery (OAR 438-007-0015(8)). The opinion notes there is no Oregon counterpart to FRCP 26(b)(2) limiting expert discovery.

On notice, the opinion concludes a lawyer contacting an opposing expert need not notify opposing counsel, citing Mershon v. Oregonian Pub. and the Board's reasoning in Allen W. Haes that a notice requirement would be inconsistent with the policy of full, fair, and expeditious disclosure. It adds a caution: the nature or extent of ex parte contact could invade an applicable privilege or the work-product doctrine and thereby be conduct prejudicial to the administration of justice under Oregon RPC 8.4(a)(4). The opinion states this risk can be minimized by limiting the inquiry to the expert's findings, conclusions, and opinions and avoiding discussion of the expert's communications with opposing counsel.

In practice

This opinion was issued in 2005, after Oregon's adoption of the current Rules of Professional Conduct, so it interprets the current rule numbering, but readers should treat its specifics with care given its age and its reliance on workers' compensation procedure. The opinion holds that direct contact with an opposing expert is governed by discovery law rather than a no-contact rule, and that Oregon's broad comp discovery policy permits it without notice. Per the opinion, the analysis turns on whether the contact invades privilege or work product, which it identifies as the line that would make the contact improper under Oregon RPC 8.4(a)(4). Verify the current rules and workers' compensation regulations before relying on any specific point.

Common questions

Q: Can a lawyer call the other side's expert witness in a workers' comp case?

A: Yes. The opinion concludes no statute, regulation, court rule, or conduct rule restricts contact with an adverse expert in a workers' compensation proceeding, so it is permissible.

Q: Does the lawyer have to tell opposing counsel before contacting their expert?

A: No. The opinion concludes there is no requirement to provide notice of the contact to opposing counsel, citing Mershon v. Oregonian Pub.

Q: Are there limits on what the lawyer can ask?

A: Yes. The opinion cautions that probing the expert's communications with opposing counsel could invade privilege or work product and be conduct prejudicial to the administration of justice; it advises limiting the inquiry to the expert's findings, conclusions, and opinions.

Background and rules framework

The opinion interprets the limits on contacting an opposing expert primarily through workers' compensation discovery law (ORS chapter 656 procedure; OAR 438-007-0015 and -0016) rather than a specific conduct rule, with Oregon RPC 8.4(a)(4) (conduct prejudicial to the administration of justice), corresponding to Model Rule 8.4, as the backstop where contact invades privilege or work product.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 8.4(a)(4) / Model Rule 8.4 (conduct prejudicial to the administration of justice)

Regulations:

• OAR 438-007-0015(8) (Workers' Compensation Board policy of full and complete discovery)
• OAR 438-007-0016 (disclosure of expert witnesses)

Cases:

• Booth v. Tektronix, Inc., 312 Or 463, 823 P2d 402 (1991) (contact with medical witnesses permissible)
• Mershon v. Oregonian Pub., 96 Or App 223, 772 P2d 440 (1989) (no notice requirement)

Other opinions cited:

• OSB Formal Ethics Op. No. 2005-131 (contacting an adverse expert in a criminal case)
• OSB Formal Ethics Op. No. 2005-132 (communicating with adverse expert witnesses in a civil case)

See also

• OSB Ethics Op. 2005-131: Contacting an Adverse Expert in a Criminal Case
• OSB Ethics Op. 2005-132: Contacting Adverse Witnesses in a Civil Case
• OSB Ethics Op. 2005-130: Representing a Plaintiff and Her Expert Witness

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-154.pdf