Should There be a Expert Witness Code of Ethics?

You took ethics in law school, the MPRE and the bar exam. Attorneys who walk into court know (or at least should know) the ethical standards they are held too.

But what about the expert witness walking next to them? Does he or she know?

To help guide you in your journey through the jungle of ethical behavior for expert witnesses, FindLaw is helping to propose an Expert Witness Code of Ethics.

Existing ethical rules are largely silent on the topic of expert witnesses. They address experts only in broad mandates that attorneys are not to tamper with the truthfulness of witnesses or pay fees to non-expert witnesses.

Granted, some courts fill in this gap. Through their interpretations of ethical, procedural and evidentiary rules, judicial opinions provide much-needed guidance to lawyers and experts alike.

Trial lawyers also help fill this gap through a trial-and-error process of ethics by consensus. Through legal-education seminars, written articles and word-of-mouth, they give shape to general understandings of what is and is not acceptable in the use of expert witnesses.

Taken together, these common-law and practice-generated mileposts can provide useful guidance. But they are at best a patchwork, varying widely from jurisdiction to jurisdiction. Even within a single jurisdiction, these informal standards may be inconsistently applied and frequently misunderstood.

Here are some highlights of the proposed Expert Witness Code of Ethics:

Confidentiality:

• An expert witness should assume that all communications with the client or with retaining counsel are subject to disclosure.

Fees:

• An expert's fee should not be contingent on the outcome of the trial.

Ex Parte Communications:

• An expert who has been retained in a matter shall not communicate with jurors or adverse counsel except through formal discovery or judicial procedures.

Conflicts of Interest:

• Once retained, an expert may not switch sides. If the case is released or discharged, the expert may only be allowed to switch sides so long as doing so would not violate the original client's expectation of confidentiality.

Professionalism:

• Expert witnesses shall not destroy or conceal evidence that are discoverable.

Related Resources:

• Updated: An Attorney's Code of Expert Ethics (Findlaw.com)
• Whitepapers: Tips on Selecting Legal Document Management Software (FindLaw's Technologist Blog)
• In-House Counsel: The Importance of Records Management (FindLaw's In House Blog)
• Top 10 eDiscovery Best Practices for Handling Metadata (FindLaw's Technologist Blog)