Texas Ethics Opinion 676

You can’t interview potential expert witnesses and share confidential information with them solely to taint them with a conflict that would prevent the experts from working for the other side, the Texas State Bar Professional Ethics Committee recently said in Opinion No. 676.

“T’aint” ethical

Lots of litigation requires expert testimony in order to support plaintiff’s allegations or to defend against them.  But if a lawyer shares confidential information with a prospective expert, the expert may be disqualified from working for the other side.  (There is a helpful collection of the cases on this point at Freivogel on Conflicts.)

What if your case involves an area where there are only a few specialized experts who can testify?  How about “interviewing” all of them, and providing confidential information about the case, even though you don’t have any actual intention of hiring them?  Can you try to keep the qualified experts out of the grasp of the other side with that tactic?

Not surprisingly, the Texas ethics committee said “No.”

The Lone Star State’s version of Model Rule 4.1(a) prevents using means to represent a client that have no substantial purpose other than to burden a third person, or using methods of obtaining evidence that violate the rights of a third person.  That prohibition applies to prevent a lawyer from hiring an expert, or communicating confidential information to a potential expert, “when the lawyer has no substantial purpose other than to … imped[e] the opposing party’s access to a limited pool of potential experts,” the committee said.

That “substantial purpose” is clearly a question of fact, said the committee, and it’s not necessarily improper to retain an expert and still interview additional ones, as long as the lawyer is actually considering using them.

Using misrepresentations and deceit to disqualify a prospective expert could also violate Texas’ version of Model Rule 8.4(c), barring dishonesty, fraud, deceit or misrepresentation, the committee added.

Can a client DQ a lawyer by “taint shopping”?

The principle that the Texas ethics committee applied is echoed, as to lawyers and clients, in comment [2] to Model Rule 1.18.  If a prospective client consults us about the possibility of hiring us, we take on confidentiality duties to that person or entity, even if we are not ultimately hired.

But especially in smaller legal markets, there can be an abusive tactic where a person “interviews” several lawyers in a specialty area — not with the goal of hiring one of them, but to preclude the other side from doing so.  That’s commonly known as “taint shopping,” and comment [2] makes clear that “a person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a ‘prospective client.'”  Such a pretextual “shopper” is not owed any duties under Rule 1.18.