1. Appropriate Client Communications

Communicating effectively and consistently with a client and in a professional and ethical manner is an important balance to maintain.  Communication between the lawyer and the client is a crucial component to providing professional and competent legal representation, and nothing irritates a paying client more than when he or she is unable to get in touch with their attorney, or even get a returned phone call.  The ABA Model Rules of Professional Conduct provide specific requirements regarding the frequency and type of communications that must take place between an attorney and the client.  ABA Rule 1.4 provides that a lawyer shall:

  • promptly inform the client of any decision or circumstance with respect to which the client’s informed consent;
  • reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
  • keep the client reasonably informed about the status of the matter;
  • promptly comply with reasonable requests for information; and
  • consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law; and,
  • explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

 Model Rules of Prof’l Conduct, R. 1.4 (a)-(b).

It can be convenient for an attorney to overlook the requirement to provide explanations to the client regularly, particularly when strategic action is being taken and the case is moving rapidly.   The ABA Model Rules provide some level of flexibility in this regard, stating that the adequacy of communication depends in part on the kind of advice or assistance that is involved.  The Rules differentiate explaining general trial strategies and prospects of success, which require communication and explanation to the client, versus describing trial or negotiation strategy in detail.   Model Rules of Prof’l Conduct, R. 1.4, cmt 5.  The Model Rules note that the guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests.  Id.  Because “reasonable client expectations” can be subject to varying interpretations, and particularly given that most lawyers nowadays have smart phones which allow the free exchange of e-mails frequently and instantaneously, clients are more deserving than ever of communications from their lawyers.  It is prudent, therefore, to err on the side of having open and continuous lines of communication.

A lawyer must also determine which decisions are solely the client’s to make, and which decisions can be made by the attorney on the client’s behalf.    This generally depends on both the importance of the action under consideration and the feasibility of consulting with the client prior to action being taken.  Model Rules of Prof’l Conduct, R. 1.4, cmt 3.  In certain circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation.  Id.  When such a situation presents itself, the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client’s behalf.  Id.
One area of required client communications that can be the most difficult in practice is the duty of the attorney to self-report a potential malpractice action to his own client.  Although the Model Rules do not make this requirement explicit, it is clear when reviewing Model Rule 1.4, which requires candor in attorney-client communications, and Model Rule 1.7, which prohibits representation when a known conflict arises, that such a requirement exists.  The requirement has been fleshed out in more detail in ethics opinions, court cases, and legal articles.  Restatement (Third) of the Law Governing Lawyers, § 20 cmt. c (2000) provides that if the lawyer‘s conduct of the matter gives the client a substantial malpractice claim against the lawyer, the lawyer must disclose that to the client. The New York Court of Appeals has held that an attorney has a professional duty to promptly notify his client of his failure to act and of the possible claim his client may have against him. In re Tallon, 447 N.Y.S.2d 50 (App. Div. 1982) The California Court of Appeals notes that this is to be done “with complete disregard to any personal embarrassment, benefit, or interests.” 51 Goldfiser v. Superior Court, 183 Cal. Rptr. 609, 615 (Cal. Ct. App. 1982).  The California rules of professional ethics even require that a lawyer inform an existing client in writing if the lawyer does not have malpractice insurance. Cali. R. Prof’l. Conduct, R. 3-410.

If an attorney’s legal representation possibly rises to the level of professional malpractice, then the lawyer’s personal interests could not be in more direct conflict with the client’s and the issue could dramatically worsen if ignored.  In addition to potential sanctions for violating rules of professionalism, the failure to notify a client of a potential malpractice action could also give rise to its own independent malpractice action. See Benjamin P. Cooper, The Lawyer’s Duty to Inform His Client of His Own Malpractice, 61 Baylor L. Rev. 174, 209-213 (2009).  Thus, while financial fears, embarrassment, and basic urges of self-preservation can discourage an attorney to self-report a potential malpractice action, the attorney is under a heightened ethical obligation for disclosure.

  1. Incapacitated Clients and Powers of Attorney

The typical communication from a lawyer to a client is one of legal advice and counsel only.  After receiving that legal advice, the big decisions are left to the client.  However, in addition to providing the legal advice to the client, the lawyer must also be satisfied that the client is capable of making the decision in the first place.  This obligation first requires knowing how to determine whether a client is incapacitated and then knowing what action to take in protecting the client’s interests.

ABA Rule 1.14 (b) suggests that a client is incapacitated “when the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest.”  Model Rules of Prof’l Conduct, R. 1.14 (b).  In order to determine whether the client is indeed incapacitated, the lawyer is encouraged to consider factors such as “the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client.” Model Rules of Prof’l Conduct, R. 1.14, cmt 6.  In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.  Id.

If the attorney determines that the client is incapacitated for purposes of making a decision, it is the lawyer’s ethical responsibility to then take protective action.   Protective action can include using a reconsideration period to allow the client to clarify the situation or allow time for improvement of the circumstances, consulting with individuals and family members, consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client.  In appropriate cases, using voluntary surrogate decision-making tools such as durable powers of attorney or seeking the appointment of a guardian ad litem, conservator or guardian are allowed, though the action allowed can vary by state.  Model Rules of Prof’l Conduct, R. 1.14 (b); see also Model Rules of Prof’l Conduct, R. 1.14, cmt 5.

The attorney must be particularly careful in the protective action he or she takes, because while a lawyer must protect the interests of a client, the attorney must also be compliant with confidentiality and the ultimate duty of loyalty.  In order to get around confidentiality issues, Rule 1.14(a) expressly states that communications from an attorney to a third party that are reasonably necessary to protect the client’s interests are impliedly authorized as contemplated by Rule 1.6(a).  However, in certain circumstances, the disclosure of client communications made by an attorney in an effort to determine whether the client is incapacitated or take protective action if that has already been determined could have an adverse impact on the client’s interests.  Then it becomes tricky, as the communication could be considered beyond that which is “reasonably necessary to protect the client’s interests” if it could reasonably be expected to result in a negative result for the client, such as involuntary commitment.

States have approached this predicament differently.  California is in conflict with the ABA Model Rules, as it prohibits an attorney from initiating conservatorship proceedings on behalf of an incapacitated client, noting that such action would be a breach of the duty of confidentiality regarding communications, and would constitute a position adverse to the client’s.  See Cal. Formal Opinion No. 1989-112.  Therefore, in California, the only option is for the attorney to withdraw.   Id.  New York and Massachusetts allow the lawyer to initiate conservatorship or guardianship proceedings if there is no practical alternative and the initiation of the proceedings is a last resort.  See NY State 746 (2001); See also, Mass. R. Prof’l. C. 1.7(a). Massachusetts prohibits the lawyer from also representing the third party seeking the appointment of conservator because the interests of the client and the interests of the conservator would be in direct conflict.  Mass. R. Prof. C. 1.7(a).

However, much of the action addressed above requires time, which is often not an available luxury when a client is incapacitated.   The ABA Model rules do allow for some level of flexibility if the circumstances are so urgent as to prevent the attorney from being able to establish a lawyer-client relationship.  The ABA Rules provide that if the health, safety, or financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, the attorney may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship.  This can be done only if the lawyer reasonably believes that the person has no other lawyer, agent or other representative available, and the action taken must only be to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm.  Model Rules of Prof’l Conduct, R. 1.14, cmt 9.

While the majority of states follow the ABA Model Rules in these situations, it is important to refer to the particular rules and opinions in the appropriate tribunal when determining the appropriate action when dealing with an incapacitated client and determining the appropriate action to take, particularly if an emergency situation exists.  Regardless of the mental state the client is in, it is always the attorney’s responsibility to treat client with attention and respect, and maintain as normal an attorney-client relationship as is reasonably possible. See Model Rules of Prof’l Conduct, R. 1.14(a); see also Model Rules of Prof’l Conduct, R. 1.14, cmt 2.

  1. When and How to Decline/Withdraw Representation

Knowing when to withdraw from representing a client, or decline to represent a client can prove to be one of the more difficult decisions for an attorney to face.  If clients are particularly difficult to come by, or if the attorney is already heavily involved in a case, it can be a tough call to make.  However, it is helpful to set certain boundaries and guidelines for yourself to reference if you feel uncomfortable with initiating or continuing the legal representation of a particular client.  Having guidelines to fall back on can help take the emotion and financial interest out of the decision.

One important red flag to look for is the client who has already been through at least one attorney in their case.  Make it a practice of calling the former attorney and asking if there is anything in the case that you need to be aware of before taking it on.  While the other attorney will not likely comment on matters that are protected by the attorney-client privilege, they can certainly shed light on a particular case from their point of view, which can provide helpful insight into whether the case is worth the undertaking.

Additionally, the comment to the ABA Model Rule 1.16 provides a helpful mantra of questions to consider.  Before taking on any client, make it a habit of asking yourself, if I accept representation in this matter, 1) can I perform competently and promptly?, 2) can I perform without improper conflict of interest?, and 3) can I perform in this matter to completion?   If the answer to any of these questions is “no”, then the attorney should not accept representation of the case. Model Rules of Prof’l Conduct, R. 1.16, cmt 1.

Withdrawing from representation can be a bit trickier, as you are already invested in the case and often already identified as the attorney of record with the Clerk of Court.  Withdrawing from a case, particularly when it has not been requested by the client, must be done strategically and in compliance with the Professional Rules of Ethics in the appropriate tribunal.  The Model Rules provide restrictions for when and how an attorney can withdraw his or her representation of a client.  ABA Model Rule 1.16 (b) on “Declining or Terminating Representation” defines several instances where withdrawing from representation may be permissible. Good cause for withdrawal exists when:

  • Withdrawal can be accomplished without adverse effect on the interests of the client;
  • The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
  • The client has used the lawyer’s services to perpetrate a crime or fraud;
  • The client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
  • The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
  • The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.

While some of these categories, such as those addressing crime and fraud are pretty clear.  However, many of these categories are subject to varying interpretations.  In nearly every tribunal, permission from the Court is required before an attorney may withdraw his or her representation from a case, and that tribunal’s view regarding the reason for the withdrawal will determine whether the withdrawal is permitted.   For example, a client failing to pay the fees agreed upon does not automatically mean that the client has failed to “fulfill an obligation to the lawyer regarding the lawyer’s services” sufficient to permit a withdrawal.  In fact, this can run afoul of the requirement that an attorney confirm, in advance of taking on the representation, that he or she can see the representation through until the matter is complete.  Model Rules of Prof’l Conduct, R. 1.16, cmt 1.  One the one hand, it can be viewed as unseemly to abandon a client for nonpayment of fees after you have affirmatively declared before the Court that you are counsel of record.  On the other hand, ensuring access to justice for clients tends to favor the right to withdraw for nonpayment of fees.

Courts in Massachusetts and Rhode Island have been cited as allowing attorney to withdraw based on a client’s failure to pay outstanding invoices, while Courts in Texas and New Hampshire have refused to grant withdrawals for these reasons.  See, e.g., Hammond v. T.J. Little & Co., 809 F.Supp. 156 (DMass 1992); Silva v. Perkins Mach. Co., 622 A2d 443 (RI 1993); compared to Fed. Trade Comm’n v. Intelipay, Inc. 828 F.Supp 33 (SD Tex 1993); Gibbs v. Lappies, 828 F.Supp. 6 (DNH 1993).   New York requires that the client have deliberately disregarded an obligation to pay fees and expenses before an attorney may withdraw, and that the failure to pay fees and expenses must have been conscious, not inadvertent, and not de minimis in either amount or duration. See N.Y. State 598 (1989).  A number of courts and ethics opinions have found that prior to withdrawal for non-payment of fees, a lawyer first must ask the client to honor the outstanding payment obligations and also warn the client that the lawyer will withdraw unless the fees are paid.  See ABA/BNA Lawyers’ Manual on Professional Conduct 31:1108 (2006).  By contrast, California does not expressly require a lawyer to provide a reasonable warning to the client before seeking to withdraw due to non-payment of fees.  See Cal. Rules of Prof’l Conduct, R. 3-700(A) (2).  Some state ethics boards have gone so far as to discourage lawyers from placing the client’s advanced assent to his/her withdrawal for non-payment of fees in the initial retainer agreement.  See N.Y. State 805 (2007).

Moreover, how “adverse” must the effects be on the client to yield a situation where the lawyer is not permitted to withdraw?  Certainly being in a position of having retain new counsel has at least an incidental adverse effects on the client, particularly if there is a hearing or court date scheduled.  The Model Rules provide additional direction in this regard, with ABA Model Rule 1.16(d) requiring that “[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.”  Model Rules of Prof’l Conduct, R. 1.16(d).  It will be up to the tribunal to determine whether the lawyer’s view of “reasonable notice” is in fact, reasonable.

However, in certain instances, the decision is made quite easy, as the situation the lawyer finds him or herself falls into a category wherein withdrawal is not just an option, but a mandatory requirement.  ABA Model Rule 1.16 (a) for “Declining or Terminating Representation” provides that an attorney must withdraw if 1) the representation will result in violation of the rules of professional conduct; 2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or, 3) the lawyer is discharged.  Model Rules of Prof’l Conduct, R. 1.16(a).

  1. The Ethics of Handling Witnesses and Evidence
  1. Talking to Witnesses before They Testify

It is helpful for an attorney to speak with each witness before he or she testifies, particularly if the attorney will be calling that witness to the stand.  Most lay witnesses have never testified before and are open to guidance regarding what to expect.  However, in order to comply with the rules of ethics, it is important to keep certain precautions in mind.

First, before you can talk with a witness, you must confirm that he or she is not represented by an attorney in the matter at issue.  Often witnesses choose to obtain legal representation when testifying, which can be easily overlooked.  ABA Model Rule 4.2 provides that “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” (emphasis supplied) Model Rules of Prof’l Conduct, R. 4.2.  The Model Rule applies to any person known to be represented in the matter and is not limited to the opposing party.  When in doubt, just ask.

Second, it is important during your discussion with any witness not to tamper with the witness by seeking to influence his or her testimony.  You can collect information from the witness, but cannot coach the witness.  The most effective way to prevent being accused of witness tampering is to let them do the talking, avoid suggesting answers to them, and be open and encouraging with the witness about the importance of telling the truth.

It is also not appropriate to encourage a witness not to speak with opposing counsel, as that decision is solely within the discretion of the witness.   ABA Model Rule 3.4(f) provides that a lawyer shall not “request a person other than a client to refrain from voluntarily giving relevant information to another party unless 1) the person is a relative or an employee or other agent of a client, and 2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from voluntarily giving such information.” Model Rules of Prof’l Conduct, R. 3.4(f).

This issue was recently addressed by a Tennessee Circuit Court. See Sara E. Costello, Counsel Enjoined from Contacting Non-Party Witnesses, Litigation News, Jan. 6, 2012.   In Abbott v. A.W. Chesterton Company, counsel for the Plaintiff, who was suing various manufacturers and suppliers of asbestos-containing products for injuries, sent a letter to 16 of the Plaintiff’s co-workers.  Id.  The letter recommended that they “firmly refuse to speak or respond” to defense counsel, noting that their refusal “will minimize [their] involvement and will help make sure that the testimony [they] give is the truth”. Id.  The letter also advised the potential witnesses not to sign “any affidavits or other documentation” they might receive from defense counsel without first allowing plaintiff’s counsel to review them.  Id.

In reviewing the matter, the Court noted that “the letter implied that defense counsel would attempt to mislead and distort the witness’s statements.”  Id. The court found the letter to be “improper”, though ultimately determined that the witnesses would be permitted to testify.  Id.  Not all courts have been as forgiving.  Id.  In Kensington Intern. Ltd. v. Republic of Congo, counsel for the Republic of Congo contacted a non-party witness several times in an attempt to convince him not to attend a post-judgment deposition. Id.  The Court in Kensington found that counsel acted in bad faith and imposed $165,000 in sanctions. Id.

Finally, if the trial or hearing has already begun, the attorney must comply with the rule of sequestration if it has been invoked, which it almost always is. The purpose of the rule of sequestration is to ensure that one witness’s testimony is not impacted by the testimony of another.  An attorney must be particularly mindful of the rule of sequestration and the requirements against witness tampering when speaking with a witness during breaks or recesses while the witness’s testimony is ongoing.

In United States v. Guthrie, 557 F.3d 243 (6th Cir. 2009), the Court of Appeals for the 6th Circuit noted that “sequestration orders, even when granted, do not prohibit witnesses from speaking with counsel.” Id. citing United States v. Maliszewski, 161 F.3d 992, 1011-12 (6th Cir. 1998).  In Guthrie, a witness was released from the witness stand for an overnight recess while her cross-examination by the defense attorney was still ongoing.  As the witness was dismissed, the defense counsel request that the prosecutor be instructed not to speak with the witness during the overnight recess.  Id.  The Court refused the request, and the 6th Circuit noted that “[i]n permitting the prosecutor to speak with the victim while she was still on cross examination, the district court did not explicitly violate the rule on sequestration of witnesses. Federal Rule of Evidence 615 provides that ‘at the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses.’”

But while an attorney is permitted to speak to a witness during recesses at trial, the attorney must also be ever mindful that discussions they have with witnesses, whether before, during, or after trial, are not privileged and can be subject to thorough examination by the other attorney.  While the Court in Guthrie did not preclude the prosecutor from speaking to the witness during an overnight recess while cross-examination was still ongoing, the Court did note that “she is going to be here tomorrow morning at 9:00 o’clock, and you may examine her about anything improper in the interim.  Guthrie, 557 F.3d at 249.  Anything said between an attorney and a witness can ultimately see the light of day in a courtroom.

  1. Handling Highly Prejudicial Evidence

The mishandling of prejudicial evidence, even if inadvertent, can be both a discovery violation, an ethical violation, and in extreme cases of falsifying evidence, a crime.  ABA Model Rule 3.4 provides that a lawyer shall not:

(a) unlawfully obstruct another party’ s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;

(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.

Model Rules of Prof’l Conduct, R. 3.4.

These ethical obligations were long ago addressed by the U.S. Supreme Court in the context of criminal cases, with the Court establishing proactive duties in criminal cases to disclose evidence prejudicial to its case.  In Brady v. Maryland, 373 U.S.83 (1963), the Court stated the constitutional basis of the duty of prosecutors to disclose evidence to the defense.  The U.S Supreme Court expanded this position in Giglio v. United States, 405 U.S. 150, 154 (1972), making it clear that a prosecutor’s duty to disclosure is not limited to exculpatory evidence, but also covers evidence affecting credibility.  The Supreme Court went even further in United States v. Agurs, 427 U.S. 97 (1976), holding that the prosecution’s constitutional duty to disclose is not limited to situations where the defendant made a specific request for the relevant evidence.

The legislative branch of government has just recently become motivated on this topic as well.  On March 15, 2012, Senator Lisa introduced the “Fairness in Disclosure of Evidence Act of 2012”, which would require federal prosecutors to make early disclosure of evidence that is favorable to a defendant and may demonstrate his or her innocence, regardless of whether the evidence is deemed material to the case by the prosecutors.  Matthew Umhofer, Fairness in Disclosure of Evidence Act of 2012, Thomson Reuters News & Insight, April 23, 2012.  The Act moves up the timing of the mandatory disclosure evidence that is exculpatory or favorable to the defense as required by Brady, requiring that the information be provided information to be provided “before the entry of any guilty plea.”  Id.  The Act also seeks to define what is in the government’s “possession” for discovery purposes, defining it as including any agency that participates in any investigation, and requires the disclosure of items the prosecutors know about or should know about.  Id.

The legislation also would make clear that failure to abide by Brady obligations is a serious breach of the government’s responsibilities and would give judges a broad range of remedies, including postponing or adjourning the proceedings, excluding or limiting testimony or evidence, ordering a new trial, or dismissing the case with or without prejudice. Id. The appellate standard for a violation is also modified as it forbids an appellate court from finding a failure to disclose under Brady harmless “unless the United States demonstrates beyond a reasonable doubt that the error did not contribute to the verdict obtained.”  Id.  During a March 15 press conference, the ABA maintained that this Bill would be “an important step toward achieving consistency and improving fairness in the federal civil justice system and will serve the cause of achieving justice in countless individual cases.”  Id.

The ABA Model Rule Comments provides an excellent summary outlining why it is vital for our legal justice system as a whole to have full compliance from its representatives when dealing with prejudicial evidence:

Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions makes it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense.

Model Rules of Prof’l Conduct, R. 3.4, cmt 2

While the violation of the rules of fairness to opposing counsel and the Brady requirements to hand over prejudicial evidence can lead to severe consequences such as sanctions, suspension and disbarment, the United States Supreme Court recently chimed in on the issue of whether a municipality can be held liable for a single (highly egregious) Brady violation.  The answer, with dissenting voices heard all around was a resounding no.  Connick v. Thompson, 131 S.Ct. 1350 (2011).  In Connick, the trial court upheld a $14 million jury verdict for a man who was sentenced to death only to be exonerated 18 years later after learning that prosecutors had withheld crucial blood sample evidence in his murder trial.  Id.  The man sued the Orleans Parish in Louisiana and after receiving a $14 million jury verdict, the trial court added another $1 million to the verdict.  Id.  The 5th Circuit Court of Appeals affirmed the decision, and then affirmed it again in an en banc sitting.  Id.  The U.S. Supreme Court reversed the 5th Circuit in a 5-4 opinion, with Justice Thomas’s opinion noting that the municipality cannot be held responsible for a single Brady violation.  Id.  Justice Ruth Bader Ginsberg was so offended by the outcome that she read her dissent from the bench.  The result of the opinion was widespread condemnation in the media and legal community addressing the Opinion’s indirect tolerance for attorney misconduct.  So while a successful civil lawsuit against an attorney or government authority for withholding evidence is not likely under the current state of the law, there are certainly dissenting voices seeking to change that.

  1. Work-Product Doctrine as it Applies to Expert Witness Reports in Progress

From 1993 to December 1, 2010, the Federal Rules of Civil Procedure required the broad disclosure of draft expert reports.  Specifically, FRCP 26 provided that the expert’s written report  “contain a complete statement of all opinions to be expressed and the basis and reasons therefore, the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.”  Fed. R. Civ. P. 26(a)(2)(B)(ii).  The phrase “or other information” was often interpreted to include draft reports as well as communications between the attorneys and the expert witnesses.  The idea was that even data that was rejected by the expert in formulating his/her opinion was required to be disclosed because it was at least considered prior to its rejection.  The 1993 Committee Note accompanying the amendment underscored the significance of that term:

The report is to disclose the data and other information considered by the expert and any exhibits or charts that summarize or support the expert’s opinions. Given this obligation of disclosure, litigants should no longer be able to argue that materials furnished to their experts to be used in forming their opinions—whether or not ultimately relied upon by the expert—are privileged or otherwise protected from disclosure when such persons are testifying or being deposed.

Under the old version of the expert disclosures federal rule, communication with an expert witness was a risky undertaking, as all communications between counsel and expert witnesses were potentially discoverable.  Moreover, every draft reflecting every word change in the expert’s report can be sought and obtained by the other side.  The result of the Rule’s broad inclusion of sensitive information was magnified costs for clients.   Because the discoverability of communications between the attorney and the expert witness prevented the attorney and the expert witness from communicating freely in order to obtain a meaningful opinion in the case, attorneys began hiring expert “consultants” to insulate the expert “witness” from these invasive discovery rules. The non-testimonial consultant would be hired to provide initial observations and opinions, and often screen the communications between the attorneys and the testimonial expert.  Costs were further increased by the requirement that the testimonial expert gather all written communications, notes, and draft language considered in formulating his or her opinion.

In response, the ABA proposed an amendment to Rule 26 in 2006 that would provide a limited privilege to an expert’s draft reports and communications with counsel and on December 1, 2010, the new version of FRCP 26 took effect.  The new 2010 rule limited the information that was subject to expert discovery by removing the catch-all phrase “or other information” that was previously in Rule 26(a)(2)(B)(ii).   The Rule went even further to protect attorney communications with expert witnesses and the draft reports that were created in that the new Rule 26(b)(4) specifically designates draft expert reports and most attorney-expert communications as “work product”.   Fed. R. Civ. P. 26(b)(4).

There are a few limited exceptions to the new work product designation.  Specifically, communications that relate to expert compensation identify facts or data given to the expert that the expert considered, or identify assumptions that the expert relied on are still discoverable.   Fed. R. Civ. P. 26(b)(4).  Even those communications and reports that do not fall into one of these three exceptions can be discoverable if the party seeking the information can show a substantial need for such a report and demonstrate that they could not otherwise obtain the information sought without undue hardship, in which case the Court has discretion to order its production.  Fed. R. Civ. P. 26(b)(4).

The new rule does, however, create more disclosures for non-reporting experts, such as treating physicians or other witnesses who were not retained or specifically employed to provide expert testimony.  Fed. R. Civ. P. 26(a)(2)(C).  The old version of FRCP 26 did not require any disclosures for non-reporting experts, merely requiring the attorney to identify the non-reporting exert by name.  Under the current rule, a party is required to disclose the identity of any witness who will be offering expert opinion evidence at trial. Fed. R. Civ. P. 26(a)(2)(A), and further provide “(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.”  Fed. R. Civ. P. 26(a)(2)(C).  However, these disclosure requirements are much less time consuming than the comprehensive expert reports required for experts specifically retained to provide testimony, as they merely required summary statements that can be prepared by the attorney.