Chapter 11 Ethical Considerations When Working with Consultants

• Jurisdiction: United States

Chapter 11 Ethical Considerations When Working with Consultants

Amber Bevacqua-Lynott Buchalter Portland, OR & San Diego, CA

AMBER BEVACQUA-LYNOTT is Senior Counsel & Associate General Counsel in Buchalter's Portland and San Diego offices, and a member of the Firm's Professional Responsibility and Litigation Practice Groups. Ms. Bevacqua-Lynott provides guidance and legal representation to attorneys, licensed professionals, and other business clients, including firms and in-house legal departments. Her practice centers on legal ethics, risk management, and discipline defense. She acts as outside counsel to clients in a variety of industries, providing advice and counsel on all manner of ethics issues, including conflicts, confidentiality, malpractice, risk management, and fee issues. In addition, Ms. Bevacqua-Lynott represents lawyers, students, and other professionals in front of regulatory authorities and bar associations on licensing, admissions, reinstatement, reciprocity, character and fitness, consumer protection, unauthorized practice of law, and disciplinary matters. Ms. Bevacqua-Lynott has more than 25 years of legal experience, including extensive civil trial experience. Prior to joining Buchalter, Ms. Bevacqua-Lynott worked in the Oregon State Bar's Disciplinary Counsel's Office (DCO) as an Assistant Disciplinary Counsel, where she investigated and prosecuted lawyers alleged of misconduct. During her time in DCO, Ms. Bevacqua-Lynott successfully first-chaired several dozen civil trials, and investigated or prosecuted hundreds of disciplinary matters. The last six years of her tenure with DCO, she was the Chief Assistant Disciplinary Counsel and Deputy Director of Regulatory Services, and also acted as Chief Trial Counsel. Intimately versed in legal ethics, Ms. Bevacqua-Lynott developed, updated, and presented Legal Ethics Best Practices, a semi-annual "ethics school" for attorneys. She also prepared and edited the annual annotations of all Bar formal proceeding dispositions, requiring that she be expertly familiar with each stipulated and adjudicated case result. She regularly presents seminars on ethics issues, both locally and nationally, and frequently provides ethics advice to attorneys.

Experts, strictly speaking, are not advocates; they are sources of information and opinions in technical, scientific, medical or other fields of knowledge. Yet when experts are retained in connection with litigation, they must operate within the constraints of, and consistent with, the adversary process.

— Wang Lab'ys, Inc. v. Toshiba Corp., 762 F. Supp. 1246, 1250 (E.D. Va. 1991)

Introduction

In whatever jurisdiction they may practice, lawyers are subject to ethical rules and guidelines fashioned, at least in part, on the ABA Model Rules of Professional Responsibility ("Model Rules"). Consultants and other non-legal professionals are not subject to the Model Rules or their jurisdictional equivalent. Nonetheless, where these individuals work for or in conjunction with lawyers on legal matters, the affiliated lawyers may (and often are) responsible for ensuring that these nonlawyers comply with the lawyer's own ethical obligations. This presentation will discuss the applicable legal standards that apply in these relationships, as well as strategies and ethical considerations for working with consultants and other non-legal professionals.

Scope & Assumptions

Many consultants hired by attorneys, or otherwise involved in legal matters in a role other than as an attorney, are legally trained and licensed but choose not to practice law in the traditional sense. This program does not address those individuals, who are themselves subject to some version of the Model Rules or similar ethical standards.¹ Bear in mind, however, that there are still some obligations incumbent on working with attorneys under your supervision and direction.² thical Considerations when Working with Consultants

Similarly, this discussion does not involve direct employees of an attorney or firm, over whom an employer might have much more direct control over the nonlawyers' actions and arguments with respect to privilege. However, arguably some of the same ethical rules would apply to working with employees as it would to consultants.³

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Rather, these materials deal with the ethical responsibilities in situations where an attorney hires a nonlawyer third-party consultant or other third-party nonlawyer professional with specific expertise for the benefit of a client.

Determining when and what kind of consultants to engage

Model Rule 1.1 requires lawyers to provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Although, in many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances.⁴

Providing particular expertise necessary to provide competent representation is precisely the reason that a consultant would be utilized. A consultant is engaged to assist the attorney in providing legal advice when conditions are such that "the lawyer needs outside help" in order to properly advise the client.⁵ Use of an outside expert allows a lawyer to fill in some of the holes that you may have in your own knowledge, while still being able to provide the legal knowledge and skill necessary for the representation.⁶ Where the client directs the selection of a particular nonlawyer service provider outside the firm, Model Rule 1.2(a) supports that the lawyer should ordinarily agree with the client concerning both the selection of the identified consultant, as well as the allocation of responsibility for monitoring the consultant as between the client and the lawyer.⁷ However, the competence required in providing legal services extends to the selection of the appropriate consultant, as well as the timing of their retention, among the following other considerations.

• What is the end goal in utilizing an outside consultant?

The initial consideration must be to determine the reasons that the attorney needs to employ an outside consultant. Whether it is because the lawyer has minimal experience in a particular area, or because the particular issue requires an expert in a specialized area, such as environmental issues, real estate evaluations, medical claims, food contamination, tax issues, or government zoning and ordinances. These are all matters for which a lawyer with generalized experience may be able to assert a civil claim or draft and negotiate an agreement with the assistance of a person familiar with the intricacies of the subject.

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Identifying the goal of the services also identifies the particular type of consultant to be hired and their incumbent level of experience. For example, valuation of a single family home may only require an appraiser or even real estate agent depending on the claims at issue, but if the client is looking for a new development site for their next wind farm, an environmental consultant might be necessary.

Locating knowledgeable consultants presents its own set of challenges. Often other attorneys in a practice area may be of assistance. The client is also a good resource if they conduct business in the specialized area or otherwise have personal contacts. In addition, there are a number of expert witness agencies that also provide access to experts where an attorney may not have the time or resources available to locate an appropriate expert on their own.⁸ Remember, though, that if such services are employed, they should be vetted first in the same manner that an individual expert or consultant is vetted (discussed below).

• What is the anticipated scope of services?

From the outset it is important to determine the scope and breadth of necessary consultant services. Does a lawyer need a tutorial on the entirety of education law, or simply a tax accountant to conduct a single audit? The scope of expert or consulting services should be clearly spelled out in an appropriately tailored services agreement.

PRACTICE TIP: Even where it is anticipated that the consultant will only be needed for a discrete task, it is recommended that the consultant engagement agreement allow for expansion, if necessary. Such as:

This scope of services is intended to serve as a minimum guideline, rather than to limit Consultant's activity. Where additional areas need to be addressed, it is understood that Consultant will do so, subject to cost, time and other limitations set forth in this Agreement.⁹

• When should the consultant be brought on board

This factor depends heavily on the scope and extent considerations, above, as well as the client's budget (or the client's exposure if potential damages are not mitigated). It is likely a good idea to bring in the consultant when the lawyer faces a problem or decision that is impossible to solve without expert advice, or where the lawyer is unable to proceed/progress the client's case without the consultant's expertise. This latter situation is particularly critical as failing to progress

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a client's legal matter, in addition to demonstrating a lack of competence required by Model Rule 1.1, could lead to other ethical dilemmas.¹⁰

• Who should hire the consultant

The real consideration here is privilege issues. There may be reasons why the client or the consultant may wish to contract with either the client or the attorney, but depending upon the extent of privilege and your jurisdiction, it may generally be preferable (i.e., safer) to have the attorney employ the consultant.¹¹

• Other considerations

o Possible vicarious disqualification

"Although not governed expressly by ethics rules, an issue of disqualification can arise, because a lawyer hires an agent or expert, who received confidential information that should be protected."¹² This is among the many reasons why proper...