Texas: no taint shopping for experts.

Today’s post comes courtesy of Professor Alberto Bernabe.  Professor Bernabe is a regular member of the #fiveforfriday honor roll and the author of the Professional Responsibility Blog.  This morning, he posted on a recent advisory opinion in which the Professional Ethics Committee for the Texas State Bar concluded that Rule 4.4 prohibits lawyers from “taint shopping” for experts.

  • Professor Bernabe’s post is here.
  • The Texas advisory opinion is here.

First: what is “taint shopping?”

The answer begins with Rule 1.18.  The rule sets out a lawyer’s duties to the prospective client.  A “prospective client” is one “who, in good faith, discusses with a lawyer the possibility of forming a client-lawyer relationship . . ..” If no professional relationship ensues, the lawyer must not use or reveal information learned from the prospective client. Nevertheless, the lawyer may represent someone who is adverse to the prospective client in a matter that is the same as or substantially related to the matter that was discussed, but only if the lawyer did not receive information that could be “significantly harmful” to the prospective client.

In other words, with respect to the client who consults with but does not retain a lawyer, the duty of loyalty is relaxed, but the duty of confidentiality is not.

Critical to the analysis: whether the person consulted with the lawyer “in good faith.”

Per Comment [2] to Rule 1.18, “a person who participates in an initial conversation, or communicates information, with the intent to disqualify a lawyer from representing a client with materially adverse interest is not acting in good faith and is not a ‘prospective client’ entitled to the protections of [the rule].”

The language in Comment 2 tracks an amendment proposed by the ABA’s Ethics 20/20 Commission.  Per the Legal Ethics Forumthe language clarifies:

  • “that a person is not owed any duties under Rule 1.18 if that person contacts a lawyer for the purpose of disqualifying the lawyer from representing an opponent.  Many ethics opinions have recognized that lawyers owe no duties to those who engage in this sort of behavior, which is commonly referred to as ‘taint shopping.’ [2]  In fact, some states have incorporated this concept into their own versions of Rule 1.18.  See, e.g., New York R. Prof. C. 1.18(e)(2).  The Commission concluded that the concept deserved expression in Comment [2] given the ease with which technology makes ‘taint shopping’ possible.”

Professor Bernabe opened his blog by stating “you may have heard stories about divorce clients ‘interviewing’ good divorce lawyers so that their spouses would not be able to hire any of the lawyers so interviewed.”

That’s “taint shopping.”

Of course, Rule 1.18 applies to prospective clients.  Yet, as applied through a different rule, the analysis is essentially the same when it comes to lawyers who “taint shop” with prospective experts.

The applicable rule is Rule 4.4(a).  It prohibits a lawyer who is representing a client from using “means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of a third person.”

Per the Texas State Bar, a lawyer violates Rule 4.4 by sharing information with an expert for no other reason than to disqualify the expert from assisting the other side.  In addition, the Texas State Bar warns that a lawyer who misleads a prospective expert about the true nature of their conversation risks violating the rules that require honesty.

Again, the Texas advisory opinion is here.

If you find yourself questioning whether it’s a good idea, Dr. Evil has the answer . . .

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