The use of expert witnesses occurs with regularity in civil litigation. Its use is also increasing in criminal trials. How does an attorney navigate the complicated waters of working with an expert witness, balancing when and whether to share information from the client? Can a client’s confidences be shared with an expert without losing the attorney client privilege? Where does the line between the work product doctrine and discovery lie? This post seeks to explore these very real concerns for attorneys working with both consulting experts and testifying experts in civil and criminal cases.
Attorney Client Privilege
The American Bar Association’s Model Rules of Professional Conduct Rule 1.6 covers the attorney client privilege. It states:
- (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)
- (b) . . .
- (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client
These rules make sense. Protecting the client (absent their potential for violence or other criminal conduct) is part of the attorney’s job. But what is an attorney to do in a situation where the client has provided information an expert may find valuable. Consider, for example, a case involving the total loss of a building due to a fire.
Using Experts and Understanding the Limits of the Attorney Client Privilege
Arson can involve both civil and criminal courts, and each may decide to hire experts to determine potential causes of the fire, possible points of origin, potential negligent conduct which could have led to greater damage than otherwise might have occurred, etc. Perhaps a client tossed a cigarette butt into a vent to dispose of it. Perhaps a building owner failed to maintain a regular cleaning schedule for the ductwork. Perhaps the venting system for the new deep fryer is not up to code. An attorney, and the attorney’s expert, may need this information in order to properly evaluate the situation. But how does one obtain this information and convey it to the expert without risking the creation of a witness for the other side? How does one ask relevant questions about a pertinent scientific issue, based on information provided by the client, where the information may implicate a client, or may exonerate the client? How can one truly advocate for a client without knowing the ramifications of one action or another taken by the client at or near the time of the incident at issue?
Clarify the Expert’s Purpose
Whether or not attorney client privilege extends to discussions between the client and the expert, or discussions between the attorney and the expert involving facts disclosed by the client, depends on the purpose of the expert in the matter at hand. If, for example, an expert is retained to assist the attorney in providing legal advice, this may have a different impact on the potential discovery of evidence than if the expert is hired for the purpose of expertise in anticipation of litigation.
Assisting an Attorney in Providing Legal Advice
To understand the difference between a consulting expert, where privilege attaches, and a testifying expert, where communications with the client may not be protected (particularly if they provide information which forms the basis of the expert opinion) consider the example of an interpreter. Imagine a case where the client is not fluent in English, and an interpreter is necessary. Despite the fact an interpreter is indeed a third party, whose presence would normally negate the attorney client privilege, an interpreter is essential for the communication between attorney and client, so the attorney can render legal advice. So, too, are some experts essential for communication between attorney and client, so the attorney can render legal advice.
Attorneys cannot possibly have sufficient background in accounting, engineering, forensic DNA evidence, fire science, medical conditions, and the impact of underinflated tires on a wet road surface as it relates to stopping distance to be expected to practice law without the assistance of expert “interpreters” to allow them to obtain the information they need to evaluate the case and advise their clients. As long as the purpose of consulting an expert is to provide assistance to the attorney rendering legal advice, the privilege is not waived. United States v. Korvel, 296 F.2d 918, 922 (2d Cir. 1961).
Assisting an Attorney in Preparing for Litigation
When an expert is hired to provide assistance in anticipation of litigation, rather than providing legal advice, the attorney client privilege will not apply. This is because the expert is not being called to assist an attorney in determining a proper course of action, wherein privilege attaches, but rather the attorney is being called in to protect a client’s financial or liberty interests through advocacy. However, the communications may still be protected under Federal Rule of Civil Procedure 26.
Discoverable Information and the Consulting Expert
Experts are divided into two categories under the Federal Rules of Evidence: testifying experts, and “experts employed only for trial preparation,” also known as consulting experts. Federal Rule of Civil Procedure Rule 26 (b) provides for protection of facts known to a consulting expert as follows:
Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.
There are exceptions to this rule, such as on a showing of exceptional circumstances, or in cases of physical and mental examinations under certain limited conditions under Fed.R.Civ.Pro. 35 (b). However, as a general rule, experts relied on for consultation are able to learn facts from the client under the attorney client privilege.
Discoverable Information and the Testifying Expert
Of course, in any case where a testifying expert prepares a report, the report is discoverable by law. However, drafts of the report are protected by Fed.R.Civ.Pro. 26 (b)(4)(B). Communications between an expert witness and the party’s attorney are also protected, under Fed.R.Civ.Pro. 26 (b)(4)(C). However, there are exceptions for the following communications:
- Those relating to compensation for the expert’s work
- Those communications which provide facts or data that the party’s attorney provided and that the expert considered when forming their expressed opinions
- Assumptions provided by the party’s attorney which the expert relied on when forming their expressed opinions
Disparity in Disclosure
The disparity between the treatment of a consulting expert and a testifying expert is clear – a testifying expert must disclose things a consulting expert does not have to disclose. When determining whether to identify an expert as a testifying expert or a consulting expert, it is a good idea to consider how one intends to use the expert, as their designation applies both to the attorney client privilege, as well as disclosure rules under the Rules of Evidence.
Considering Case Approaches
In many cases, the best approach may be to first hire a consulting expert. This expert is free to examine all issues, consider all hypotheses, and explore all alternatives, then come to a conclusion about a client’s potential fault, liability, or contributory negligence. Once a case evaluation has occurred, an attorney may then discuss with the client the potential benefits and challenges that may come with protracted litigation. Section (b) is omitted, as the exceptions to attorneys revealing information related to the representation of their clients are largely limited to instances of criminal activity, fraud, and questions presented to the ethics board. While these exceptions are important, it is difficult to see how these exceptions might fit in to a discussion of protecting attorney client privilege in conjunction with consulting with an expert in a civil or criminal matter.