Burford & Ryburn partner Andy Cox recently published an article in the Dallas Bar Association’s publication Headnotes entitled, “Expert Witness Consultations and Engagements
.” In the article, Mr. Cox explains the ethical dilemma presented when an attorney choses to consult or engage an expert witness for the sole purpose of depriving the opponent of the opportunity to obtain the expert. The issue is whether this type of gamesmanship is permitted under the Texas Disciplinary Rules of Professional Conduct.
As Mr. Cox explains in his article, the Texas Professional Ethics Committee recently answered this question by issuing an Ethics Opinion. The opinion concludes that attorneys may not retain or disclose confidential information to a prospective expert for the sole purpose of preventing the adversary from using the witness. “In short, lawyers are free to consult with and engage as many experts as they need to support their case, so long as they are not doing so solely to burden or delay an opponent.”