85-2.

• Case Date: August 23, 1985
• Court: Alaska

Alaska Ethics Opinion 1985. 85-2. Ethics Opinion No. 85-2Ex Parte Communication with Experts Retained by Opposing Counsel.The Committee has received several requests for reconsideration of Ethics Opinion 84-8, which holds that nondeceptive ex parte attorney communications with expert witnesses or consultants retained by an adverse party are not prohibited by the Code of Professional Responsibility. These requests point out that the Committee has not considered the provisions of Alaska Civil Rule 26(b)(4), which sets forth the method for formal discovery of facts known and opinions held by experts, acquired or developed in anticipation of litigation or for trial. Actually, the Committee did consider Alaska Civil Rule 26(b)(4) in its issuance of Ethics Opinion 84-8. Ethics Opinion 84-8 was intended to deal only with the initial ex parte contact, and not with the requirements of formal discovery. The procedure envisioned was that the initial ex parte contact could be made. At that point the expert could either consent to or decline to talk to opposing counsel. The attorney hiring the expert could protect against disclosure of information by directing the expert not to discuss the case with other persons. Subsequent to the issuance of Ethics Opinion 84-8, certain things have taken place which have convinced the Committee that the procedure approved in Ethics Opinion 84-8 has serious inherent problems. Three developments have taken place since the issuance of Ethics Opinion 84-8, which militate against the procedure approved in that opinion, as follows: (1) The Ninth Circuit Court of Appeal in American Protection Insurance Co. v. MGM Grand Hotel Las Vegas, Inc., No. 83-2674, 83-2728 (December 3, 1984), stated that a law firm could be disqualified from representing its client because of ex parte contacts made with a confidential employee and expert witness of the opposing party. The court recognized that ex parte contacts may result in the disclosure of confidential information to the opposing parties. The party seeking disqualification must show only a possibility or the appearance of the possibility of obtaining confidential information in order to obtain disqualification. (Trone v. Smith, 621 F.2d 994, 1001 (9th Cir. 1980)) The Second Circuit, in fact, has held that disqualification is required where an attorney is only...