In Kentucky, may a lawyer name people as expert witnesses in a pretrial statement when the lawyer has never contacted them?

Plain-English summary

The Committee addressed a practice it said was being reported with some frequency: lawyers listing persons as expert witnesses though the lawyer had never contacted the named persons. Drawing on Virginia Op. 768 (1986), which called it a fraud on the court to list physicians as testifying experts in interrogatory answers without contacting them, the opinion concluded it would be a deceptive practice to name an expert in a pretrial statement when the lawyer has not contacted the person to serve in that capacity, certainly so where the lawyer had no intention of contacting the witness.

The opinion explained that the practice invites bluff and deception and the misuse of a person's name and reputation for tactical purposes, can be used to discourage an opponent from contacting the listed person, and in an extreme case could "corner the market" on a category of experts; the lawyer's innocent or other intent may be an issue in a particular case. The Committee noted the problem arose most often with medical experts, and added that lawyers had been naming the Ethics Committee Chairman and other members as testifying experts in litigation involving lawyers despite the Chairman's announced position, published in the Bench and Bar, that he would not provide paid expert testimony during his tenure.

Currency note

This opinion was issued in 1991 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130); the Kentucky Bar Association notes that Rule 8.3(c) was later renumbered to Rule 8.4(c). Lawyers should consult the current version before relying on this opinion. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer list an expert in a pretrial statement before contacting them?

A: No. The opinion concluded that naming an expert the lawyer has not contacted is a deceptive practice, certainly where the lawyer had no intention of contacting the person.

Q: Why did the opinion treat the practice as deceptive?

A: Per the opinion, it invites bluff and deception, misuses a person's name and reputation for tactical purposes, can discourage the opponent from contacting the listed person, and could "corner the market" on a category of experts.

Q: Did the lawyer's intent matter?

A: The opinion noted that the lawyer's intent, innocent or otherwise, may be an issue in a particular case.

Background and rules framework

The opinion interprets KRPC 4.1 (truthfulness in statements to others; Model Rule 4.1) and KRPC 8.3(c), later renumbered 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation; Model Rule 8.4(c)), applying them to representations made in a pretrial statement to the court and the opponent.

Citations and references

Rules of Professional Conduct:

• MR 4.1 / KRPC 4.1 (truthfulness in statements to others)
• MR 8.4(c) / KRPC 8.3(c) (dishonesty, fraud, deceit, or misrepresentation)

Other opinions cited:

• Virginia Op. 768 (1986): listing uncontacted experts in interrogatory answers as a fraud on the court

See also

• KBA Ethics Op. E-374: A Lawyer's Duties on Receiving Misdirected Materials
• KBA Ethics Op. E-372: Contacting an EEOC Complaining Witness

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-348.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-348
Issued: June 1991

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky Supreme Court has
adopted various amendments, and made substantial revisions in 2009. For example, this opinion
refers to Rule 8.3(c), which was renumbered to Rule 8.4(c). Lawyers should consult the current version
of the rules and comments, SCR 3.130, (available at http://www.kybar.org), before relying on this
opinion.

Question:

Is it ethical for a lawyer to represent to the court and the opponent, in a pretrial statement, that
certain persons will be providing expert testimony on their client's behalf, and that person is not a
witness in any other capacity, when the named experts have never been contacted?

Answer:

No. This is a deceptive practice.

References:

Virginia Op. 768 (1986); Rules 4.1 and 8.3(c); DRs 1-102(A)(4), 7-102(A)(4)(5)(8).
OPINION

With some frequency, it is being brought to the Committee's attention that lawyers are listing persons as
expert witnesses when the lawyer has never contacted the named witnesses. In Virginia Op. 768 (1986) the
Committee held that it was a "fraud on the court for a lawyer (in response to interrogatories) to list the names of
physicians as testifying experts when the lawyer has not contacted the persons named. While there might be some
unusual circumstance justifying such conduct, a court or an opponent would be justified in characterizing it as
"deceptive."
It would seem to follow that it would be a deceptive practice for a lawyer to name an expert in a pretrial
statement when the lawyer has not contacted the person to service in that capacity. That would certainly be the
case if the lawyer had no intention of contacting the witness. To suggest otherwise would be to invite bluff and
deception, and the misuse of a person's name and reputation for tactical purposes. The practice of naming experts
with no prior contact could also be used to discourage the opponent from contacting the person listed, and in an
extreme case could result in the "cornering of the market" on a category of experts. Of course, the intent (innocent
or otherwise) of the lawyer may be an issue in a particular case.
The practice complained of has occurred most frequently in connection with medical cases and medical
cases and medical experts. However, it is particularly distressing to note that lawyers are now taking the liberty
of naming the Chairman and other members of the Ethics Committee as "testifying experts" in civil litigation
involving lawyers. It has been the position of the Committee Chairman that he will not provide paid expert
testimony for or against lawyers in civil and criminal cases in Kentucky during his tenure as Ethics Chairman.
This position has been announced in the Bench and Bar, along with references to Virginia Op. 768. Despite this
warning, lawyers are still naming the Chairman and other members as "expert witnesses" in pretrial statements
filed with the Court.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar
Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule
provides that formal opinions are advisory only.