Managing Risks When Working with Experts and Consultants, 0617 COBJ, Vol. 46 No. 6 Pg. 61
| Author | J. Randolph Evans, Shari L. Klevens, Lino S. Lipinsky, Lauren P. Carboni, J. |
Whoops—Legal Malpractice Prevention
J. Randolph Evans, Shari L. Klevens, Lino S. Lipinsky, Lauren P. Carboni, J.
Managing Risks When Working with Experts and Consultants
Selecting and working with consultants and experts are routine aspects of modern law practice. Many complex matters may turn on the opinions of consultants and experts. In determining what information to share with a consultant or expert, the attorney must carefully balance the need to disclose sufficient facts to allow the consultant or expert to provide meaningful assistance with the risk of waiving the attorney–client privilege or the protections for attorney work product.1
Even though consultants and experts may be privy to important information and decisions, including legal strategy and theories of the case, they do not function as attorneys and should not be treated as such. This makes the selection of consultants and experts an important task involving risk management issues. This article recommends strategies for mitigating the risks associated with selecting, paying, and working with consultants and experts. The Interprofessional Code (IPC)2 serves as a guide to appropriate interaction between attorneys and other professionals and is a valuable resource for navigating these risks.[3]
Counsel Should Hire Experts
Risk management begins with the hiring process. Attorneys working with consultants or experts should hire the expert or consultant themselves rather than allow the client to do so. It is not uncommon, however, for counsel to request that the client physically sign the agreement with the consultant or the expert, so that the client at least shares the responsibility to pay the consultant’s or the expert’s fees and costs. Alternatively, the lawyer may assume sole liability for paying the consultant or expert, particularly in contingency fee engagements. In some instances, a client may have a professional in mind based on a work history or a previous relationship, or a colleague may have recommended the expert or consultant to the client. In other instances, because clients are typically responsible for costs in any representation, the client may want to hire the expert or consultant directly.
Certainly, the attorney should give the client’s preferences and thoughts great deference in deciding whom to hire as an expert or a consultant. But completely delegating this responsibility to the client is not advisable. The IPC states that the attorney has the ultimate duty to determine the expert’s legal competency to render an opinion on a given issue.4 For many reasons, the better course is for counsel, and not the client, to retain consultants and experts directly. This is both a practical and an ethical practice.5
The first step in retaining a consultant or an expert often involves a written request that (1) fully informs the expert concerning the purpose for which the opinion is sought; (2) identifies the parties to the claim and the party requesting the opinion; (3) specifies the information and documentation provided to the expert upon which the expert opinions should be based; (4) provides a brief summary of the case; (5) specifies the issues to be addressed by the expert and the legal terminology, if any, involved or required; and (6) lists all information that the expert will be required to disclose by court rule. In addition, the request may recite the financial arrangements to which the expert and the attorney have agreed.6 The typical expert retention agreement outlines who pays, who communicates, and who directs.
Who Pays?
Most consultants and experts prefer that the law firm remain responsible for their bills, but the better course (and one consistent with the ethical rules in most states) is for the client to accept responsibility for paying the experts.
Who Communicates?
Clients should not communicate with experts or consultants without counsel being present. The risks of admissions, misdirection, mistakes, and privilege waiver are simply too great. In addition, when litigating in a jurisdiction such as Colorado, which allows certain communications between a non-testifying or consulting expert and an attorney to be protected by the attorney–client privilege 7 or work product protection,8 the ability to assert the privilege with respect to such communications becomes much more challenging if the client has communicated with the expert without attorney involvement. But the attorney can take steps to maximize the likelihood that such communications will be protected from disclosure. Colorado courts have held that the attorney–client privilege will protect communications between the client and agents of the attorney (i.e., consulting experts) where the assistance of these agents is indispensable to the attorney’s work.[9] In any event, all information that is shared with a testifying expert, including attorney work product, is discoverable under CRCP 26(a)(2).10
Who Directs?
As a result, for both legal and practical reasons, attorneys should implement communication protocols for experts. Each person has a role to play. The attorney must make all strategic legal decisions and may direct the consultant or expert to communicate exclusively with counsel. This...
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