Jan. 15, 2014 – Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by State Bar’s Ethics Counsel org tpierce wisbar Timothy Pierce and assistant ethics counsel org akaiser wisbar Aviva Kaiser, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.
I represent the plaintiff who was injured in a car accident caused by faulty mechanical repairs. I have learned that the defendant, the automobile dealership that repaired the plaintiff’s car, has hired an expert witness. Is it ethical for me to contact and interview the defendant’s expert witness prior to any formal discovery?
As a general rule, attorneys for one party in a pending cause of action are free to interview the intended witnesses, including expert witnesses, of the opposing party without the consent or presence of opposing counsel. Wisconsin Formal Ethics Op. E-83-13. As with all general rules, there are exceptions.
The primary exception to the general rule arises when the opposing party’s expert witness is also the treating physician. The Wisconsin Supreme Court has held, as a matter of public policy based on the physician’s ethical obligation of confidentiality and the physician-patient privilege, that defense counsel may not engage in ex parte "discovery" with the plaintiff's treating physician. Steinberg v. Jensen, 194 Wis. 2d 439, 466-67, 534 N.W.2d 361, 371 (1995).
However, a lawyer is not prohibited from interviewing or engaging in ex parte “discovery” with an opposing party’s expert witness – other than the treating physician. Wisconsin Formal Ethics Op. E-94-1.
Another exception to the general rule arises when the expert witness is represented by counsel in the matter. SCR 20:4.2 prohibits a lawyer from communicating about the subject of the representation with a person the lawyer knows is represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law or court order. The mere fact, however, that opposing counsel retains an expert does not mean that opposing counsel represents the expert witness.
When a lawyer interviews the opposing party’s expert witness who is unrepresented by counsel, the lawyer must first explain his or her role in the matter pursuant to SCR 20:4.3.
Wisconsin Formal Ethics Op. E-83-13, Wisconsin Formal Ethics Op. E-94-1, Steinberg v. Jensen, 194 Wis. 2d 439, 534 N.W.2d 361 (1995), SCR 20:4.2, SCR 20:4.3.