Can a lawyer contract with an unrepresented expert witness to keep work-product confidential and to alert the lawyer before responding to a subpoena for it?

Plain-English summary

A lawyer prepared a work-product document containing his mental impressions and sent it to an unrepresented expert witness (on the assumption the transfer did not waive privilege). The lawyer logged the document as privileged on a privilege log rather than producing it, but worried that opposing counsel could obtain it directly from the witness by informal request or subpoena before the lawyer could object. The committee was asked whether the lawyer may ask the witness to notify him of any such request and delay responding, and whether the lawyer may agree with the witness to keep the information confidential to prevent disclosure to the opposing party.

The committee analyzes both questions under Rule 1.6's duty of confidentiality, which (per Comment 5) covers both the attorney-client privilege and the work-product doctrine. Disclosing work product to the expert was a proper disclosure impliedly authorized to carry out the representation. Because the expert is a retained nonlawyer (Rule 5.3 reaches independent contractors per Comment 1), the lawyer must make reasonable efforts to ensure the expert's conduct is compatible with the lawyer's confidentiality obligations. Drawing on the parallel measures in Rule 1.6(b)(5) for outside agencies, advising the third party that the information must be kept confidential, the committee concludes the proposed steps (asking the witness to report any request or subpoena and to keep the information confidential) are reasonable and both permissible and advisable.

The committee adds a limit. As to the subpoena step, the lawyer must heed court rules that may not allow a motion to quash to be heard before the witness's compliance deadline; in that case the lawyer may need other protective means, such as having the witness submit the materials to the court under seal. The lawyer may not contract with or encourage the witness to violate a rule of court, because Rules 3.4(d) and 8.4(a) bar a lawyer from directing another person to do so.

Currency note

This opinion was issued in 2003. Virginia's confidentiality and supervision rules, and the rules of court governing subpoenas, may have changed since. Verify against current rules before relying on any specific requirement mentioned here.

In practice

The opinion holds that a lawyer who has properly shared work product with a retained expert may, under Rule 5.3, secure the expert's protection of that confidentiality by agreement, including asking the expert to notify the lawyer of any request or subpoena and to keep the information confidential. The opinion draws the line at directing the expert to disobey a court rule: under Rules 3.4(d) and 8.4(a), the lawyer cannot have the witness violate a subpoena or other court rule, and may instead need lawful protective measures such as production to the court under seal.

Common questions

Q: Can a lawyer ask an expert witness to alert him before responding to a subpoena for work product?

A: Yes. The committee concludes this is a reasonable measure under Rule 5.3 to protect confidentiality, so long as the lawyer does not direct the witness to violate the subpoena or any court rule.

Q: Can a lawyer sign a confidentiality agreement with an expert to keep information from the opposing party?

A: Yes, per the opinion. Asking the expert to keep the client's information confidential is an appropriate step to ensure, under Rule 5.3, that the expert's conduct is compatible with the lawyer's confidentiality duty.

Q: What if a court rule requires the witness to comply with a subpoena before a motion to quash can be heard?

A: The lawyer may not contract with or encourage the witness to violate the court rule (Rules 3.4(d), 8.4(a)); the committee suggests other lawful means, such as the witness providing the materials to the court under seal.

Background and rules framework

The opinion interprets Rule 1.6 (Model Rule 1.6; confidentiality, including the privilege and work-product doctrine per Comment 5, and the office-management disclosure provision Rule 1.6(b)(5)), Rule 5.3 (Model Rule 5.3; responsibilities regarding nonlawyer assistants, reaching independent contractors), and Rules 3.4(d) and 8.4(a) (Model Rules 3.4 and 8.4; not disobeying or causing another to disobey a court rule). The committee notes the January 1, 2004 revision to Rule 5.3 did not change its conclusions.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Virginia Rule 1.6 and Comment 5, and Rule 1.6(b)(5) (confidentiality)
• Model Rule 5.3 / Virginia Rule 5.3 (nonlawyer assistants, including independent contractors)
• Model Rule 3.4 / Virginia Rule 3.4(d) and Model Rule 8.4 / Virginia Rule 8.4(a) (not directing another to violate a court rule)

Other opinions cited:

• Virginia LEOs 1643, 1702, 1749 (confidentiality as a "bedrock principle")

See also

• VA LEO 1786: Confidential Documents Obtained by a Client Without Authorization
• ABA Formal Op. 05-437: Inadvertent Disclosure of Confidential Materials
• CA COPRAC Op. 2010-179: Confidentiality and Competence Using Technology

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1787.pdf

Original opinion text

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

Committee Opinion
December 22, 2003
LEGAL ETHICS OPINION 1787

CAN ATTORNEY PREVENT A 3RD PARTY
WHO HAS PRIVILEGED INFORMATION
FROM DISCLOSING THAT INFORMATION TO
AN OPPOSING PARTY AND CAN ATTORNEY
ENTER INTO A PRIOR AGREEMENT WITH 3RD
PARTY TO KEEP PRIVILEGED INOFMRATION
CONFIDENTIAL.

You have presented a hypothetical situation in which an attorney prepares a document in
anticipation of litigation that contains his mental impression and thoughts about the case. The
attorney sends the document to an expert witness, who is not represented by counsel. The
hypothetical presented rests on an assumption that the transfer of the document to the witness
does not waive the attorney-client privilege. After the litigation begins, the attorney claims the
privilege for this document as attorney work product and, therefore, does not provide the
document to the opposing counsel. Instead, the attorney provides a privilege log identifying the
date, author, and recipient of the document. The attorney is concerned that the opposing counsel
could use that information to either informally request that the witness provide the document or
to obtain the document from the witness via subpoena. If such effort is made by the opposing
counsel, the attorney may not learn about the request or the subpoena until after the document
has already been provided by the witness to the opposing counsel. To prevent that disclosure,
the attorney wishes to enter into a contract with the witness, whereby the witness would agree to
inform the attorney of any such request or subpoena and to delay responding until a motion to
quash or a motion for a protective order can be heard by the court.
You have asked the committee to render an advisory opinion addressing the following issues:
1) May an attorney request an unrepresented person who has received information
protected under the attorney work product privilege is to notify the attorney of
any requests by an opposing party for that information to delay responding to that
request to allow the attorney the time to either have the subpoena quashed or a
protective order entered?
2) May an attorney ever enter into a agreement with a third party to keep
privileged information confidential if the purpose of that agreement is to prevent
the third party from disclosing that information to an opposing party?
The questions raised in your hypothetical involve the lawyer’s duty of confidentiality as
outlined by Rule 1.6. 1 Paragraph (a) of that rule carves out from the general duty of
nondisclosure those disclosures “that are impliedly authorized in order to carry out the
representation.” Thus, Rule 1.6 contemplates that an attorney, while working within the
parameters of the duty of confidentiality, may need to make disclosures to third parties, such as
expert witness. The hypothetical attorney’s disclosure of the work product from this case to the
expert witness was a proper disclosure.
1

The hypothetical uses the terms “attorney-client privilege” and “attorney work product privilege” interchangeably.
While technically the two terms have separate meanings, the definition of “confidentiality” in Rule 1.6 specifically
includes both the attorney-client privilege and the work product doctrine. See, Rule 1.6, Comment 5.

Committee Opinion
December 22, 2003

When an attorney makes disclosures necessary to carryout the representation, the attorney
should be mindful of the continuing duty of confidentiality and, therefore, take necessary steps to
prevent disclosure of client information beyond what is needed for the representation. Rule
5.3(a) directs that when an attorney employs, retains or is associated with a nonlawyer, certain
precautions must be taken. 2 Comment One to that rule confirms that Rule 5.3(a) applies not only
to the employees of the attorney but also to independent contractors. The attorney in the present
hypothetical should therefore consider Rule 5.3 applicable to his contracting with the expert
witness for the client’s matter. That rule directs the attorney to “make reasonable efforts to
ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct
is compatible with the professional obligations of the lawyer.” The attorney in the present
instance has provided confidential client information to the nonlawyer expert witness. The
attorney then needs to make “reasonable efforts” to ensure that the expert witness understands
the attorney’s duty of confidentiality and to ensure that the expert witness protects the
confidentiality of the information received.
In determining what would be “reasonable measures” to ensure that the expert witness acts in a
manner compatible with the attorney’s duty of confidentiality, a parallel provision in the rules
provides guidance. Rule 1.6’s provisions regarding the general duty of confidentiality includes
paragraph (b)(5), which allows for disclosure of:
Information to an outside agency necessary for statistical, bookkeeping,
accounting, data processing, printing, or other similar office management
purposes, provided the lawyer exercises due care in the selection of the agency,
advises the agency that the information must be kept confidential and reasonably
believes that the information will be kept confidential. (Emphasis added.)
While an expert witness is not hired for “office management purposes,” the precautions
outlined for such disclosures in Rule 1.6(b)(5), including advising the third party that the
information must be kept confidential, would be appropriate “reasonable measures” for this
attorney to take.
The specific questions raised with this hypothetical inquire whether the attorney could 1)
request the witness to contact the attorney upon receipt of a request or subpoena for the client
information and 2) obtain an agreement from the witness that he will keep the client information
confidential, including not disclosing the information to opposing counsel. Each of those steps
would be appropriate for this attorney to ensure, as required by Rule 5.3, that the expert witness
does nothing to compromise the attorney’s duty to protect the confidentiality of information.
This committee has consistently declared that protection of client confidences is a “bedrock
principle” of legal ethics. See, LEOs 1643, 1702, 1749.
The sort of steps proposed in the hypothetical are both permissible and advisable in the
hypothetical situation. The committee notes, however, that with regard to the subpoena
2

The committee notes that the revision to Rule 5.3 that will go into effect January 1, 2004 in no way changes the
conclusions drawn in this opinion regarding the current Rule 5.3.

Committee Opinion
December 22, 2003
provision, the attorney must be mindful of applicable court rules which may not in a particular
instance provide for a hearing on a motion to quash in time to stay the witness’ duty to comply
with the subpoena. In such instances, the attorney may need to seek other means of client
protection, such as provision of the materials by the witness to the court under seal. While such
specific strategies are a matter of civil procedure outside the purview of this committee, the
committee notes that it would not be permissible for the attorney to contract with or otherwise
encourage the witness to violate a rule of court. A lawyer may not direct another person to
violate a rule of court. See, Rules 3.4(d) and 8.4(a).
This opinion is advisory only, based only on the facts you presented and not binding on any
court or tribunal.