Combining Representation And Expert Opinions Not Ethically Appropriate

An opinion of the Rhode Island Ethics Advisory Panel on combining the roles of counsel and expert witness

FACTS

Before joining the Rhode Island Bar, the inquiring attorney served as an experienced real estate development practitioner who frequently testified as an expert witness before differing adjudicative bodies regarding various real estate development topics, including special use permits, variances, design review, and subdivisions. He or she wishes to continue to serve as such an expert witness in the same real estate development matters in which he or she now represents clients as an advocate. He or she has set up separate limited liability companies to effectuate these dual roles.

ISSUE PRESENTED

The inquiring attorney asks whether the Rules of Professional Conduct permit him or her to serve as an expert witness in the same real estate development matters in which he or she represents clients as an advocate?

OPINION

It is the Panel’s opinion that the inquiring attorney may not serve as an expert witness in the same real estate development matters in which he or she represents clients as an advocate, nor may he or she represent clients as an advocate in the same real estate development matters in which he or she serves as an expert witness.

Reasoning

In this case, the inquiring attorney attempts to distinguish between assorted factual scenarios and among the differing bodies before which he or she may appear as an advocate/expert witness, asking whether it is proper for him or her, “on matters for which [he or she is] an expert witness, to serve as an advocate (I) in matters without opposing parties or (II) with opposing parties on (1) pre-tribunal matters, (2) during a tribunal before (a) professional staff or (b) volunteer officials, and (3) during appeals before (a) a judge, (b) professional subject-matter staff person, or (c) volunteer officials . . . .” The Panel finds that regardless of the distinctions drawn by the inquiring attorney, all the various bodies before which he or she may appear are “tribunals” within the meaning of Rule 1.0(m) of the Rules of Professional Conduct because they adjudicate, or participate in the adjudication of, a party’s or parties’ rights with regard to real estate development. See, e.g., Town of Coventry Zoning Board of Review v. Omni Development Corp., 814 A.2d 889, 896 (R.I. 2003) (quoting Hassell v. Zoning Board of Review of East Providence, 108 R.I. 349, 351, 275 A.2d 646, 648 (1971) and noting that “‘[b[asically and fundamentally a zoning board is an administrative body whose duties are quasi-judicial’”). Thus, the Panel concludes that based on the facts provided by the inquiring attorney, he or she cannot appear before such bodies as both witness and advocate without running afoul of Rule 3.7(a).1 See Rhode Island Supreme Court Ethics Advisory Panel Op. 91-31.

Furthermore, even if Rule 3.7 did not apply to this matter, the Panel finds that the inquiring attorney is independently prohibited from serving as an expert witness in matters in which he or she also serves as an advocate pursuant to Rule 5.7 of the Rules of Professional Conduct.2 Rule 5.7 pertains to a lawyer’s responsibilities when providing or engaging in law-related services:

(a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided: (1) by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients; or (2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist. (b) The term “law-related services” denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.

“When a lawyer performs law-related services or controls an organization that does so, there exists the potential for ethical problems . . . [such as] the possibility that the person for whom the law related services are performed fails to understand that the services may not carry with them the protections normally afforded as part of the client-lawyer relationship.” Rule 5.7, Comment [1]. Rule 5.7 “identifies the circumstances in which all of the Rules of Professional Conduct apply to the provision of law-related services.” Rule 5.7, Comment [2].

(Mike Frisch)