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Pro Hac Vice Status Revoked after Ex Parte Contact with Opponent’s Expert Witness

By Sean T. Carnathan, Litigation News Associate Editor – August 17, 2010

The Supreme Court of North Carolina recently held [PDF] that a North Carolina trial court properly revoked the pro hac vice status of two attorneys because of prior ex parte contact with an opponent’s expert witness. Whether the attorneys had done anything worthy of this sanction was far from clear. The intermediate Court of Appeals of North Carolina did not think so, and neither did the circuit court in Kentucky where the challenged conduct actually occurred.


From Kentucky to North Carolina
The two attorneys represented a plaintiff in a civil action in Kentucky alleging “E. Sak” bacterial contamination. Abbott Laboratories was a defendant. During mediation of that case, Abbott disclosed for the first time the identity of its consulting expert.


After that Kentucky case settled, but before it was dismissed, one of the plaintiff’s attorneys, with the knowledge of the other, contacted that same expert to discuss providing services to the plaintiff in a second E. Sak case in Kentucky.


At the time the plaintiff’s attorney contacted the expert, Abbott was not a defendant in the second Kentucky case, but plaintiff’s counsel were contemplating adding Abbott as a defendant. The two attorneys did not tell the expert that they were considering adding Abbott as a defendant in the second case and one of the attorneys later admitted that they wanted to keep the expert “in the black.”


The expert, however, had a continuing contractual relationship with Abbott, of which the two attorneys were unaware. The two attorneys eventually retained the expert. Abbott claimed that it lost the expert’s services due to the improper communication.


Abbott moved to disqualify the two plaintiff’s attorneys in the second Kentucky case, but the Kentucky circuit court concluded that the attorneys had not violated Kentucky’s ethical rules. Abbott appealed, but the parties stipulated to dismissal of the case while the appeal was pending.


In another factually similar case filed in North Carolina against Abbott, Abbott again moved to disqualify the two attorneys based upon their contact with Abbott’s expert. In response, the two attorneys argued that because their conduct occurred in Kentucky, the Kentucky ethical rules applied, and the Kentucky court had already held that they had not violated those rules.


The trial judge, however, concluded that the plaintiff’s attorneys’ actions in Kentucky with regard to Abbott’s expert were inconsistent with Rule 4.3 of the North Carolina Rules of Professional Conduct, which addresses the duty of fair dealing with unrepresented parties. As a result, the trial judge revoked the attorneys’ pro hac vice status.


Appellate Courts Disagree
The North Carolina Court of Appeals held that the attorneys’ conduct could not be subject to discipline in North Carolina because it did not violate the ethical rules of Kentucky, where the conduct occurred.


The North Carolina Supreme Court disagreed and held that the proper focus was not on which state’s ethical rules to apply, but on the North Carolina trial court’s “inherent authority” to revoke pro hac vice status based upon its conclusion that the ex parte contact with Abbott’s retained expert in Kentucky during the pendency of the first case was “inappropriate,” constituted “the appearance of an impropriety,” and was “inconsistent” with North Carolina’s rules.


The situation “smells of gamesmanship that thwarts the truth seeking function of the judicial process,” says Joan K. Archer, Kansas City, MO, cochair of the ABA Section of Litigation’s Expert Witnesses Committee. Nevertheless, Archer suggests that although the facts appear to support some sort of sanction, something less extreme might have been appropriate. Revoking an attorney’s pro hac vice admission creates a substantial detriment to the client. “The plaintiff seems to have been lost in all this,” she notes.


Call for an Expert Witness Code of Ethics
The Section of Litigation recently formed a task force to develop an “Expert Witness Code of Ethics.” The task force is working to develop ethical standards to govern the conduct of expert witnesses. “Among the issues they will look at is what an expert must disclose to counsel regarding prior retentions,” says Jeffrey J. Greenbaum, Newark, NJ, cochair of the task force.


“This opinion focuses on the conduct of the lawyers; the task force will focus on the conduct of the expert.” For example, did the expert have a duty to disclose his ongoing contract with Abbott? “Attorneys hate surprises and they get too many when dealing with experts,” says Greenbaum.


Keywords: Litigation, ethics, expert witnesses


 
Related Resources

  • » Sisk v. Transylvania Comm. Hosp., Inc., 2010 N.C. Lexis 414 (N.C. Jun. 17, 2010).

 

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