2.9
Communicating with Witnesses, Including Experts

When communicating with a potential witness, you must disclose your interest in the matter and not encourage them to suppress evidence or refrain from providing information to other parties in the matter and observe Rules 7.2-8 through 7.2-11 regarding communicating with represented parties (Code of Conduct, Rule 5.3-1).

Part of being a competent lawyer is recognizing when it is important to bring in additional expertise. Sometimes this may involve expertise in a particular area of law. In other circumstances, competence for a particular task may require seeking advice from or collaborating with experts in scientific, accounting or other non-legal fields and when it is appropriate, you should not hesitate to seek your client’s instructions to consult experts.

Pick the right expert for the case. Do your research and ask questions before retaining the expert. Before retaining an expert, determine how their fee is calculated and obtain instructions from your client authorizing the use of the expert. If you are retained under a contingency fee agreement, clarify who is responsible for paying the expert.

If you retain a consultant, expert or other professional, you should clarify the terms of the retainer in writing, including specifying the fees, the nature of the services to be provided and the person responsible for payment. If the lawyer is not responsible for the payment of the fees, the lawyer should help in making satisfactory arrangements for payment if it is reasonably possible to do so (see Commentary [2] to Rule 7.1-2 of the Code).

When you are dealing with experts, pay their bills promptly. If you no longer require the services of an expert, advise them in writing as soon as possible. Failing to inform the expert can result in lost time and opportunity for the expert, who may expect compensation for their lost business opportunities.

If there is a change of lawyer, the lawyer who originally retained a consultant, expert or other professional should consider advising them about the change and provide the name, address, telephone number, fax number and email address of the new lawyer.

Last modified: Friday, 21 April 2023, 9:20 AM