Rule 4.04(a) of the Texas Disciplinary Rules of Professional Conduct provides: “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” Professional Ethics Opinion 585 (September 2008) concluded that a lawyer would violate Rule 4.04(a) by counseling a client to hire all the local lawyers in a community where a lawsuit is filed if the lawyer had no substantial purpose other than to delay or burden the opposing party. The reasoning and conclusion of Opinion 585 also apply to intentional expert witness disqualification.
The Texas Professional Ethics Committee recently interpreted Rule 4.04(a) of the Texas Disciplinary Rules of Professional Conduct to prohibit a lawyer from retaining an expert witness, or communicating confidential information to a prospective expert, when a lawyer has no substantial purpose other than to attempt to disqualify or otherwise prevent the expert from being used by an opposing party.
The committee found that, pursuant to Rule 4.04(a), in representing client, a lawyer shall not use means that have no substantial purpose other than to delay or burden the opposing party by impeding the opposing party’s access to a limited pool of potential experts.
It is not necessarily improper for a lawyer, who has already retained an expert witness, to interview additional experts on the same topic. However, the lawyer who is interviewing additional prospective experts should actually be considering use of the experts in the case.
If an attorney makes contact with multiple expert witnesses with no intention of using the expert witnesses, for the sole purpose of disqualifying or otherwise preventing the expert from working for an opposing party, this action constitutes a violation of Rule 4.04(a) of the Texas Disciplinary Rules of Professional Conduct. A party should be particularly alert to an opponent’s potential efforts to disqualify an expert witness pool in areas of litigation in which only a small number of individuals possess the expertise necessary to provide informed and credible assistance in the defense or prosecution of a lawsuit.