An expert witness referral association I represent wants me to ask the ethics panel whether lawyers may recommend it to their clients or represent clients who've engaged it. Will the panel answer that?

Plain-English summary

An attorney asked the panel whether a lawyer may recommend to a client that the client engage the services of a particular association of expert witnesses, or may represent a client who has already engaged that association. The attorney explained that the association provided clients or attorneys with non-legal experts to serve as witnesses, or with expert reports for use in court, and that it could be retained on a contingent fee basis. Critically, the attorney's request was made on behalf of the association itself, which was a client of his office.

The panel quoted its own Rule 2, which permits it to decline to render an advisory opinion where "the request concerns a hypothetical situation and does not arise from a factual situation faced by the inquirer," and Rule 3, which requires a request to represent that the described factual situation directly affects the inquirer's own professional conduct and that the opinion will not affect the interests of parties to a pending action. Because the request was made on behalf of the association rather than out of a factual situation the inquiring attorney himself faced, the panel held it did not comport with Rules 2(b) and 3, and declined to render an opinion.

Currency note

This opinion was issued in 1988, before the Rhode Island Supreme Court's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can I ask the ethics panel to rule on whether lawyers generally may recommend a particular expert-witness association to their clients?

A: Not as a hypothetical or on behalf of a third party, according to this opinion. The panel held that Panel Rule 2(b) bars opinions on requests that do not arise from a factual situation the inquiring attorney personally faces.

Q: Why did it matter that the request was made on behalf of the association rather than the attorney's own client situation?

A: The opinion notes the attorney's "request for an advisory opinion is made on behalf of the association, which is a client of his office," and the panel found this did not satisfy Rule 3's requirement that the factual situation directly affect the inquirer's own professional conduct.

Background and rules framework

The opinion applies the Ethics Advisory Panel's own procedural jurisdiction rules, Rule 2(b) (permitting declination where a request is hypothetical rather than grounded in the inquirer's own factual situation) and Rule 3 (requiring a representation that the situation directly affects the inquirer's professional conduct and will not affect parties to a pending action), to a request submitted on behalf of a client organization rather than out of the inquiring attorney's own practice.

Citations and references

Rules of Professional Conduct:

• RI EAP Rule 2(b) (declining an opinion on a hypothetical request not arising from the inquirer's own factual situation)
• RI EAP Rule 3 (requiring the situation to directly affect the inquirer's professional conduct)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Opinion 88-19: Panel Declines to Rule on Continued Representation of One Current Client Against Another in a Pending Contract Dispute: another 1988 opinion where the panel invoked its own procedural jurisdiction rules to decline an opinion.

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2088-24.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
Opinion #88-24, Request #22
Issued September 22, 1988

An attorney seeks Panel advice as to whether a lawyer may recommend to a client that a client engage the services of a certain association composed of expert witnesses or may represent a client who has engaged such an organization. The attorney advises the Panel that the association in question is designed to provide clients or attorneys with non-legal experts to serve as witnesses or with expert reports to be used in court. The attorney explains that the association in question may be retained on a contingent fee basis. The attorney adds that his request for an advisory opinion is made on behalf of the association, which is a client of his office.

Ethics Advisory Panel Rule 2 provides, in pertinent part, that The Panel may decline to render an advisory opinion if

(b) The request concerns a hypothetical situation and does not arise from a factual situation faced by the inquirer.

Ethics Advisory Panel Rule 3 provides, in pertinent part that a request for an Ethics Advisory Panel Opinion

. . . shall . . . contain a representation by the inquirer that the factual situation described directly affects the inquirer's professional conduct and that the opinion of the panel will not affect interests of parties to any pending action.

The attorney's request for an advisory opinion does not comport with the requirements of Panel Rules 2(b) and 3. The Panel must, therefore, decline to render an advisory opinion.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.