On December 1, 2010 several Amendments to Federal Rule of Civil Procedure 26 went into effect. The Amendments, which were approved by the United States Supreme Court and allowed to go into effect by the Congress, included changes that limit the discovery of drafts of expert reports. The Amendments focus on four matters: narrowing the areas of disclosure related to expert reports, expanding work product protection to drafts of expert reports, establishing a new work product protection for attorney – expert communications, and making clearer which testifying experts are required to submit expert reports.
With drafts of expert reports no longer being discoverable and certain communications between the testifying expert and counsel being subject to work product protection, what is to stop the lawyer from preparing a draft of the expert report and forwarding it to the expert? A brief internet search will demonstrates that ghost writing expert reports is not uncommon. In fact, the 1993 Amendment Advisory Committee Note recognizes the role of the lawyer in assisting the expert in preparing the report. The Note states that Rule 26 “does not preclude counsel from providing assistance to experts in preparing the reports, and indeed, with experts such as automobile mechanics, this assistance may be needed.” Parenthetically, it would be interesting to learn whether the reference to auto mechanics as experts had anything to do with the role of Marissa Tomei in the 1992 Movie, “My Uncle Vinny”.
It is therefore clear that lawyers may—and do—assist experts in preparing their reports. But is it ever unethical for the lawyer to assist in the preparation of an expert report? The answer may lie in a comparison with the ethical standards for witness preparation.
In order to answer this question, however, it is first important to understand the changes made in the 2010 Amendments regarding expert reports. Fed. R. Civ. P 26 (b) (4) provides that draft reports recorded in any form are protected from disclosure. Communications in whatever form between the lawyer and the person required to submit the report, are protected from disclosure. Three exceptions are communications relating to compensation to the witness for the study or testimony, the identity of facts provided by the lawyer to the expert to be used in forming opinions, and assumptions provided by the lawyer to the expert for the same purpose.
Second, it is important to understand the obvious possible harmful effects of ghost writing the report, whether ethical or not, may have on the merits of the case. Should it be learned at trial that the expert report was written in whole or in large part by the lawyer, the expert’s credibility, as well as that of the lawyer, may be damaged. In the worst case scenario, the report will be excluded and the expert disqualified.
Given that the draft report is now protected from discovery, it is more likely that the lawyer’s participation in the preparation of the expert report will continue and arguably less likely that unethical participation, should there be any, will be uncovered. So what are the ethical requirements? The most obvious ethical boundary is found in Model Rule 3.4 which provides that a lawyer may not “falsify evidence, counsel or assist a witness to testify falsely…” Nor may the lawyer “offer an inducement to a witness to testify falsely…”. In addition, Model Rule 8.4 provides that a lawyer may not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation”. Thus, just as a lawyer may not cross these ethical lines in witness preparation, the lawyer may not do so in working with an expert in the preparation of the expert’s report. An excellent article describing the ways in which a lawyer may cross the line in the general context of witness preparation is “The Ethics of Witness Preparation” by Professor Richard C. Wydick, 17 Cardozo L. Rev. 1 (1995). Also to be taken into consideration are Principles of Professionalism promulgated by several Bars. For example, Colorado’s principals say, 4.2 We will scrupulously refrain from making misleading statements of law or fact, whether by omission, inference, or implication.12
Written by Michael J. Dale, Professor of Law, Nova Southeastern University Law Center and Co-Program Director NITA Florida Deposition Program