Wrongful Designation Attorney's Designation of A Testifying Expert Without the Expert Knowledge

At a recent annual conference of the American Association of Insurance Management Consultants (“AAIMCo”), the agenda included a session on an emerging issue which AAIMCo refers to as Wrongful Designation that expert witnesses may need to pay close attention to. Wrongful Designation is when an attorney designates an individual as a testifying expert without the expert’s knowledge.
 

While some attorneys seem to see nothing wrong with designating an expert without the expert’s knowledge, those attorneys are likely committing violations of the Code of Professional Conduct in their state. This conduct harms the expert with the obvious direct financial loss of withholding his or her expert witness fee, but the ramifications go well beyond that. 

This article explores the known types of Wrongful Designation, the potential as well as actual harm to experts, opposing parties and their respective attorneys, and ways experts can address the problem both before it occurs and after it is discovered. 
  At present, AAIMCo has identified two major categories of this conduct as reported by their members. The first category is as follows: 
 

1. Without ever talking to the expert, the attorney makes a written designation identifying the expert as a testifying expert to the Court and/or opposing counsel, stating the opinion the expert is expected to give. The case settles before the expert is needed to provide a written report, or give a deposition, or trial testimony. Sometime later the expert first learns of his or her designation as an expert in the case.
   
   The most egregious scenario in this category is where the attorney does not know the expert, but has obtained the expert’s information from the internet, from another attorney, or some other source. The attorney likely believes that the case is going to settle before the Wrongful Designation comes to light, so the attorney makes the designation without ever talking to the expert.
   
   Another scenario that exists in this category is where the attorney knows, and possibly has used, the expert witness in other cases. The attorney has such a comfort level from familiarity or prior working experience in other cases, that the attorney feels that the expert will not mind it if the attorney designates the expert, just in case he might need to later use the expert. So the attorney designates the expert without ever discussing the case with the expert.

The second major category of Wrongful Designation is as follows: 
     

2. After talking to the expert to get the expert’s initial thoughts, but before engaging the expert or providing any tangible information, the attorney makes a written designation to the Court and/or opposing counsel naming the expert as a testifying expert, and stating the expert’s opinion to be that which the expert may have indicated in the preliminary telephone conference. The case settles before the expert is needed to provide a report or give a deposition or trial testimony. Sometime later, the expert first learns that he or she was designated as an expert in the case.
   
   One scenario under which this category develops is where the attorney has used the expert on prior cases and calls to get the expert’s initial thoughts on the case, ending the conversation by telling the expert that the attorney needs to get engagement authorization from the client, and will then get back with the expert. Thereafter, the attorney designates the expert representing that the initial thoughts of the expert are the expert’s opinion; or, even worse, the attorney modifies or misrepresents the expert’s initial thoughts to support the attorney’s position in the case. Usually the attorney believes that, if the case goes as far as needing to produce the expert for a report, or a deposition, or trial testimony, then the attorney can engage the expert at that time. 
   
   Another scenario in this major category is that the attorney has never dealt with the expert previously, but contacts the expert stating that the attorney needs to hire an expert, and wants to get the expert’s initial thoughts on the case before recommending that his client engage the expert. After some discussion, wherein the expert gives his or her initial thoughts, the attorney tells the expert that the attorney is going to discuss it with his client to get authorization to engage the expert. At this stage, the expert has not been provided any tangible information. The attorney thereafter designates the expert using the expert’s initial thoughts as the opinion. However, the attorney never tells the expert that he or she has been designated. 

In virtually all jurisdictions, Court Rules are interpreted to prohibit any attorney in a lawsuit from contacting an expert that another attorney has designated as a testifying witness. Because of that strict prohibition, the attorney that made the Wrongful Designation is able to keep opposing counsel from possibly retaining the expert, or even learning the truth from the expert of his or her opinion. In addition, it prevents the expert from learning of the Wrongful Designation from the opposing counsel.

Some jurisdictions and some Courts require that a written report, signed by the expert, accompany the expert designation. In those jurisdictions, Wrongful Designation is far less likely to occur, since the attorney would need to file a report from the expert with the designation. The first reaction many experts have is that they were cheated out of the fees that they were not paid. That is because there are two primary things that an expert has to offer: 

1. Their knowledge
2. Their reputation for being a credible witness

Clearly, anytime an attorney uses an expert’s name or purported opinion without compensating the expert, then the expert has had a direct monetary loss due to the attorney’s conduct. 

In addition to the direct financial loss of not being paid, the expert arguably has also suffered an indirect financial loss. Because of the prohibition barring communication between the expert and any other counsel in the case, when an attorney designates an individual as a testifying expert witness, the door is closed on the possibility of the expert being engaged by any other attorney in that case; thus, losing the benefit of any corresponding income from such potential engagement. 
 
Warren Buffet’s statement above is also true for expert witnesses, when an attorney misstates an expert’s opinion to the Court and/or opposing counsel. The degree of impact on the expert’s reputation depends on how far removed the Wrongfully Designated expert’s purported opinion is from both what the expert’s real opinion would have been and what the consensus of other experts in the same industry reasonably could have been. In other words, if the designation states an opinion that is a wild variance from both what the expert would have testified to and from what one would expect that other industry experts would reasonably conclude, then the negative impact on the reputation of the Wrongfully Designated expert may be the greatest. 
 
Another problem that is created by an attorney’s Wrongful Designation of an expert is that it prevents the expert from having the opportunity to complete a conflicts check. Experts normally inquire as to who all the parties and attorneys are in the case to determine whether or not they have a potential or actual conflict of interest. Experts are concerned about situations where they have either a legal conflict of interest; or where there is not a legal conflict, but because of who the other parties or attorneys may be, or for business or personal reasons, it is contrary to the expert’s interest to testify on behalf of the particular client or the attorney that Wrongfully Designates the expert. 
  The expert witness is not the only one impacted by the designation or use of that expert’s purported opinion without his or her knowledge. The Wrongful Designation is being done for the purpose of making the opposing counsel and his or her client believe that a respected and credible expert witness will testify against them if the case does not settle on terms that the attorney is advocating; and that great harm will befall the opposing counsel and client due to the Wrongfully Designated expert’s purported testimony should the matter have to go all the way to trial. In those cases where the opposing counsel and client settle the case on terms less favorable than they would have had the expert’s name and purported opinion not been used, then the Wrongful Designation has caused harm to the opposing counsel and client. This would particularly be true in a situation where there are only a limited number of properly qualified experts available. 
 
This time honored saying by Benjamin Franklin has never been more true. The nature of Wrongful Designation is one that regardless of how often it may occur, it will seldom come to light. That means that in order for the expert to minimize the possibility of its happening, experts should implement deterrence measures. A wide array of risk avoidance measures are not available; however, there are a few things an expert can do. 

Since the first category of Wrongful Designation happens without any contact with the expert, practically speaking, very little preventative action can be taken to avoid being the victim of that type of Wrongful Designation. However, with regard to the second type of Wrongful Designation, certain actions can be taken that will discourage an attorney from engaging in that conduct. Those actions will also document the expert’s file in the event Wrongful Designation occurs and provide timely, reliable evidence should it be necessary to prove it occurred. As such, the prevention measures discussed below only apply to prevention of the second category of Wrongful Designation. 

First, the expert should have a procedure for creating a file, noting the day and time a call is received from an attorney, identifying sufficient specifics in the event the notes need to be relied upon at a future date. The notes should include the names of all the parties to the case, the attorneys (including the firm name) for all parties to the case; the deadlines that are in place by a Court’s Scheduling Order / Docket Control Order and other judicial deadlines. In addition, the notes should include the precise request of the attorney, as well as any initial thoughts the expert related to the attorney. Most importantly, however, is that it include whether or not an agreement was reached to be engaged by the attorney, and particulars on how and when that agreement would be memorialized. 

If no engagement occurs from that conversation, and neither party intends on pursuing further discussions, the expert should specifically note such fact. If there was no engagement reached, but there is potential that one might be reached, depending on further discussions that are to occur in the future, then the expert should note who is to do what and when the follow up is expected. 

It is also a good idea to ask the attorney whether or not the expert’s initial report must be submitted at the time of the designation. If so, it will be difficult for the attorney to Wrongfully Designate the expert, because the expert’s report will be due with the designation. 

The above notes provide documentation and serve to enable the expert to set “action” deadlines with clarity and precision. From those notes, the expert should draft a written communication to the attorney that lays out the fact that the expert has not been engaged and the actions that are left to be done in order to be retained as an the expert. 

If in a reasonable amount of time an agreement is not consummated, then a final written communication could go to the attorney stating that the expert has not received confirmation of engagement from the attorney, and is therefore closing his or her file. This is a particularly good idea if you believe there is a real possibility that you might be contacted by one of the other attorneys involved in the case. 

These communications will document the non-engagement of the expert by that attorney, so that the attorney knows there is a paper trail of the non-engagement, which should have a chilling effect on the attorney’s deciding to Wrongfully Designate the expert. It would further be documentation to use in the event the expert were to later choose to file a complaint with the State Bar Association. 

The website of AAIMCo at www.aaimco.com provides some suggested wording that can be included in the expert’s confirmation to the attorney that the expert has not been engaged. 
Every State has a Bar Association that prosecutes misconduct of attorneys. The American Bar Association (“ABA”) has a Code of Professional Conduct (“Code”) that every state’s Bar Association can adopt, either identically, or with modifications. The references below to code sections refer to sections of the Code, with State Bar Association variances in content by the states footnoted. The provisions of the Code are enforced by each state’s Bar Association. While many states have their own assigned Code and Rule numbers that differs from the Code, all 50 states, except one, have adopted the ABA’s Code.¹ 

James M. McCormack, served as General Counsel and Chief Disciplinary Counsel for the State Bar of Texas, and now is in private practice in Austin, Texas concentrating in counseling major law firms on how to avoid the pitfalls that can lead to grievances being brought against them. When asked about whether or not the Texas State Bar Association has prosecuted any complaints based on Wrongful Designation, Mr. McCormack stated that he “could not confirm that any grievances or disciplinary actions have been pursued in Texas or other states against attorneys for wrongfully designating an expert; but the Bar Associations certainly should pursue a legitimate claim of that nature.” 

The Code has at least three Rules that can come into play relative to Wrongful Designation. Those are as follows:

1)    Rule 3.4 Fairness to Opposing Party and Counsel2 

A lawyer shall not: 
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists

Rule 3.4(c) prohibits an attorney from knowingly disobeying an obligation under the rules of a tribunal. This would include any rules of the Court, including State Rules of Procedure that require that the attorney designate testifying exerts and provide a summary of the expert’s opinion. In a case where an attorney gives that information to opposing counsel and/or the Court, a strong argument could be made that providing false designation information is tantamount to failing to make a designation as required by the Court rules. 

2) Rule 4.1 Truthfulness In Statements to Others ³

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person

Rule 4.1(a) states that the attorney shall not make a false statement of material fact or law to a third person. A third person, in this case, would be the Court or opposing counsel. So an attorney providing false information on his or her designation of testifying expert witness is very arguably making a false statement of material fact to a third person. 

3) Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation

(d) engage in conduct that is prejudicial to the administration of justice Rule 

8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. It is difficult to believe that falsely designating a testifying expert witness would be anything but dishonesty, fraud, deceit or misrepresentation. 

Rule 8.4(d) prohibits an attorney from engaging in conduct that is prejudicial to the administration of justice. The administration of justice contemplates that an attorney’s designation of a testifying expert would be true and correct, so as not to mislead all others in the judicial arena. When an attorney falsifies testifying expert information, a strong argument exists that such falsification is prejudicial to the administration of justice.

The requirements of whom can press a state’s Bar Association to prosecute a violation of the Code, and how it is done, can vary from state to state as virtually all Bar Associations have an established procedure for receiving complaints about attorneys. Should an expert learn of an attorney’s engaging in Wrongful Designation, then the expert should consider contacting the Bar Association in the state where the incident occurred, to report the conduct of the attorney. At that time it would help if the expert had the above-mentioned Code sections to refer to when discussing the matter. 

It would be preferable for the expert to first call the offending attorney to find out the facts as stated by the attorney. This contact may allow the expert to determine the validity of the information he or she received from another source, before deciding whether or not to report it to the Bar Association. Should the expert decide to report the attorney after talking to the attorney, then making the call to the attorney should give the expert’s case greater credibility. 

The expert should understand that his or her reporting the conduct to the Bar Association should not be done with the expectation that doing so will cause the Bar Association to act in a manner so as to help the expert collect a fee that the expert believes is owed. In fact, there is a cautiousness on the part of a Bar Association when they receive a complaint from a “vendor” to attorneys, since they do not want to be used as a collection device for vendors. In most states, if the Bar Association senses that they are being used to collect a fee (or at least leverage to aid the expert to collect a fee) then the Bar Association will not likely take the complaint to prosecution. So, the expert must understand that his or her status as a “vendor” to attorneys puts the expert in a category to make the Bar Association scrutinize his or her motives. 

Not only can the expert’s purpose of contacting the Bar Association not be for the purpose of scaring the attorney into paying the expert a fee; but the expert cannot even appear to have that idea, in the eyes of the Bar Association. And, under no circumstances, should the expert, in his or her telephone conversation with the attorney, threaten to file a grievance with the Bar Association if the attorney doesn’t pay the expert a fee. Such comments could undermine any future pursuit of prosecution by the Bar Association. 
  While this article does not attempt to explore the various legal options available to experts in the Civil Court system of the various states, suffice it to say that most states’ laws are likely to enable an expert to recover a judgment against an attorney committing Wrongful Designation, depending on the facts on any given case. In order to accurately assess the availability of such a civil remedy, the expert should contact a qualified civil attorney licensed to practice law in that state. 
  The problem of attorneys committing Wrongful Designation could have been going on for years and just recently has become known, or it may have only started occurring recently. Whichever is the case, it is conduct that the Code of Professional Responsibility prohibits. And, it can be very damaging to expert witnesses, and possibly parties and their attorneys on the opposite side in a case. For that reason, AAIMCo is continuing to gather information on occurrences from both its members, and non-member expert witnesses. If you have any information about specific acts of this type conduct, AAIMCo would appreciate your notifying them at info@aaimco.com with the specifics of any such incidences. AAIMCo is not interested in the names of the attorneys or experts involved. They only want verifiable information on the type of incidences and frequency of Wrongful Designations that are occurring. 

NOTES 
¹California Bar Association is the only Bar Association that did not adopt the ABA Code of Professional Conduct. California Bar Association has its own rules that include the following:

5-200 Trial Conduct In presenting a matter to a tribunal, a member: (b) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law. 

²New York City Bar Association has a slight variance in its wording which is:

Rule 3.4: Fairness to Opposing Counsel²

A lawyer shall not knowingly:

(a)(1) Suppress any evidence that the lawyer or the client has a legal obligation to reveal or produce. 

³New York State Bar Association has a slight variance in its wording which is:

Rule 4.1: Truthfulness in Statements to Others³
In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person. 

Misrepresentation: [1] A lawyer is required to be truthful when dealing with others on a clients behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. As to dishonest conduct that does not amount to a false statement or for misrepresentation by a lawyer other than in the course of representing a client, see Rule 8.4. 

About the Authors
Thomas M. Braniff, JD, CPCU is an attorney / insurance consultant in Houston, Texas, providing management, regulatory, legal and technical assistance to the insurance industry and others faced with insurance-related problems or opportunities. Mr. Braniff has been Adjunct Faculty member teaching insurance law and other courses in the Insurance & Risk Management degree program at the University of Houston-Downtown. More information about Mr. Braniff may be found at www.texins.net or at www.insurancecustomandpractice.com.

Robert P. Gaddis, JD has practiced law for over 36 years, concentrating in Insurance and Insurance Agent’s litigation. Prior to earning his law degree, Mr. Gaddis worked in the property / casualty insurance industry for over 12 years, first as a Commercial Underwriter for a international insurance company, and then as a Vice President and Account Executive at a international broker handling major commercial accounts. Mr. Gaddis is also a principal in the insurance coverage consulting firm of Insurance Forensics at www.insurancecustomandpractice.com. He has served as an expert in over 90 predominantly complex insurance cases. 

Special thanks to Isabel G. Vaquera, who at the time this article was written was a student in the College of Business at the University of Houston – Downtown, majoring in the Insurance & Risk Management degree program, for providing the research and organization associated with this article. 

Mr. Braniff and Mr. Gaddis are members of the American Association of Insurance Management Consultants (“AAIMCo”), and association of consultants to the insurance industry, insurance companies, agents, brokers and their consumers. Information regarding AAIMCo may be found at www.aaim.com