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This interesting 1996 U.S. 9th Circuit Opinion discusses the ethical implications of contact with an adversary's expert witness while deciding that a defense counsel's ex parte offer of "a monetary inducement" to a pro se plaintiff's expert is "witness tampering" and unethical conduct "prejudicial to the administration of justice".

Calling the lawyer's behavior "particularly disturbing" because he took advantage of plaintiff's pro se status, it goes on to say that, while calling the offer a bribe "may not be a fair characterization", lawyers must avoid conduct that can appear to be an improper attempt to influence a witness.

The appellate panel decided that the court abused its discretion by viewing the issue as an expert "switching sides" instead of a claim of unethical conduct in the form of witness tampering. Since district courts must supervise the conduct of members of their bar, it had "abdicated its duty to examine the charge of unethical behavior and impose the necessary sanctions" that "must now be addressed..."

Finding that the witness tampering prevented a fair trial, it quotes another case: "Witness tampering like perjured testimony tends to subvert the entire judicial process and its principle function of ascertainment of the truth."

Based on the above, the Circuit Court:
   1. Reversed the lower court's Judgment;
   2. Remanded the case for a New Trial, and;
   3. Ordered the District Court to Sanction & Discipline the Lawyer.

U.S. 9TH CIRCUIT COURT OF APPEALS
No. 94-15726

DONALD C. ERICKSON, Plaintiff-Appellant,
v.
NEWMAR CORPORATION, et al., Defendants-Appellees.

Appeal from the U.S. Dist. Court for the Dist. of Nevada
Lloyd George, Dist. Judge, Presiding
D.C. No. CV-91-00968-LDG

Argued and Submitted Oct. 20, 1995, in San Francisco.
Before: Ferguson and Hawkins, Circuit Judges, and Nielsen, District Judge. [fn*]

OPINION by Judge Ferguson - Filed June 18, 1996

Pro se plaintiff, Donald Erickson, claiming that his motor home manufactured by Newmar Corp. was defective, sued Newmar for violations of the Consumer Product Warranty Act. [fn1] After a bench trial, the district court ruled in favor of Newmar on all claims. Erickson appeals pro se and raises numerous issues, including an allegation that defense counsel tampered with his expert witness.

We reverse on the grounds of witness tampering.

BACKGROUND

Erickson paid $75,000 to R.V.'s Unlimited in 1990 for a 1989 motor home made by Newmar and soon noticed major defects. After nine repair attempts failed, he decided the motor home was a lemon and demanded that Newmar take it back and refund the purchase price. Newmar refused and Erickson filed his action against Newmar and R.V.'s Unlimited. [fn2]

Plaintiff's claim of witness tampering arose at the defendant's depositions of plaintiff's metal expert, Dr. Steven Grimm, and his chassis expert, Gary Bennett. The morning of Sept. 2, 1993, Erickson and Grimm went to the office of defense counsel, Leslie Combs. Before the deposition began, with Erickson present, Combs asked Grimm if he would evaluate a lock which was an important piece of evidence in an unrelated case that Combs was handling. [fn3] Combs offered to compensate Grimm at the rate of $100.00 per hour. When Combs asked Erickson if there was a problem with the arrangement, Erickson said that it was not up to him to decide.

After Combs deposed Grimm he escorted him alone to another room in the office suite to view a videotape and photographs of the lock. Later that afternoon, Erickson confronted Combs regarding his offer of employment to Grimm and informed him that during the lunch break he researched whether the offer was proper and discovered it violated the law. Combs and Erickson had a heated argument with Erickson asking Combs to stipulate that he would not tamper with his next expert witness, and when Combs refused, Erickson canceled the afternoon deposition of Bennett.

The next day, Erickson filed a "Motion for Judgment Against Newmar for Tampering with a Material Witness." ("Tampering Motion") The same day, Dr. Grimm resigned from his job with Combs. But though Grimm was no longer working for Combs, Erickson fired him because he didn't know if he could trust him. Also, his chassis expert, Bennett, quit because he didn't want to be involved in a case where "the attorneys [were] bothering the witnesses."

On Oct. 27, 1993, the district court denied Erickson's Tampering Motion. Five days later, Erickson went to trial without his expert witnesses. The court conducted a bench trial and thereafter entered judgment in favor of Newmar.

DISCUSSION

I. Standard of Review

Since the district court is vested with the power and responsibility of supervising the professional conduct of attorneys appearing before it, the appropriate standard of review is "abuse of discretion."

II. Witness Tampering

In determining plaintiff's Tampering Motion, the district court interpreted the motion as an attempt by Erickson "to disqualify his own expert witness so that an adverse judgment [could] be imposed on defendant as a sanction for causing the loss of the expert." In denying the motion, the court relied solely upon cases involving disqualification of a "switching sides" expert -- an expert who is initially retained by one party, dismissed, and employed by the opposing party in the same or related litigation. In "switching sides" cases, courts may grant the original hiring party's motion to disqualify the expert when it is determined that the expert is in possession of confidential information received from the first client. See, e.g., Paul v. Rawlings, 123 F.R.D. 271 (S.D.Ohio'88) (holding plaintiff's expert witness was not disqualified even though he had previously worked for the defense on a related matter); English v. Norden, 833 F.Supp. 1498 (D.Colo.'93) (holding expert witness was not disqualified from working for adverse party because he did not receive any confidences from original hiring party); Conforti v. Division, 405 A.2d 487 (NJ.Super.Ct.'79) (holding expert witness was disqualified from working for adverse party because he had received privileged information from original hiring party).

The present case, however, does not involve an expert who changed sides and used confidential information. Rather, Dr. Grimm was still retained by Erickson at the time Combs made him an offer of employment. Therefore, the district court erred in its analysis.

The present case is about an attorney who offered a monetary inducement to an expert witness prior to the expert giving his testimony. Thus, plaintiff's claim of unethical conduct by defense counsel requires us to decide:   1) whether attorney Combs' offer of employment and subsequent ex parte communication with Dr. Grimm was unethical; and   2) if so, what sanction is appropriate? [fn3]

A. Unethical Conduct

District courts have clear statutory authority to promulgate rules governing the admission and conduct of attorneys who appear before them. Frazier v. Heebe, 482 U.S. 641 ('87). In the District of Nevada, where this case arose, attorneys must abide by the Model Rules of Professional Conduct as adopted by the Supreme Court of Nevada. ("NV.R.") Atty Combs' offer of employment to Dr. Grimm violates two of these rules: 1) the duty to obey obligations of the tribunal, NV.R.173(3); and 2) the prohibition against conduct which is prejudicial to the administration of justice, NV.R.203(4).

It is unethical conduct for an attorney to disobey an obligation of the court. NV.R.173(3). [fn4]

In federal court, the discovery rules impose obligations on attorneys during the course of litigation. At the time of the present litigation, Fed.R.Civ.P.26(b)(4) ("R.26") provided that a lawyer's permissible contact with an opposing party's expert was limited to interrogatories and, upon leave of the court, depositions. [fn5]

A leading legal ethics treatise discusses the ethical implications of communications with an adversary's expert witness, 2 Geoffrey Hazard & W. Hodes, The Law of Lawyering sec. 3.4:402 (2d ed.Supp.'94), advising that: "Since existing rules of civil procedure carefully provide for limited and controlled discovery of an opposing party's expert witnesses, all other forms of contact are impliedly prohibited." Id. Therefore, an attorney who engages in prohibited communications violates the attorney's ethical duty to obey the obligations of the tribunal. Id., see NV.R.173(3)('86). Moreover, since the procedure for the discovery of experts is well established, an attorney may also be in violation of the rule prohibiting conduct prejudicial to the administration of justice. Id.; see NV.R.203(4). [fn6]

There is a scarcity of case law on the issue of ex parte contact with expert witnesses, possibly because the violation seldom happens. Campbell v. M/V Gemini, 619 F.2d 24 (9th Cir.'80), discusses the issue in the context of a "switching-sides" expert. In Campbell, the defense atty engaged in ex parte contacts with plaintiff's expert while the expert was still retained by the plaintiff. This court admonished the attorney for violating R.26(b)(4) and upheld the district court's disqualification of the expert. Id.

Notwithstanding the lack of case law, two ethics opinions have concluded that an attorney violates an ethical duty when the attorney has ex parte contact with the opposing party's expert witness. The American Bar Assn. Formal Ethics Opinion 93-378('93) ("ABA Op") explained that although the ABA Model Rules do not explicitly prohibit ex parte contacts with an opposing party's expert witness, an attorney who engages in such contacts may violate the duty to obey the obligations of the tribunal. Id., see Model Rule 3.4(c)('83). It reasoned that R.26(b)(4)(A) sets forth a defined procedure for an attorney to conduct discovery with respect to an opposing party's expert. Ex parte communications circumvent the discovery rules and thus violate an attorney's duty to obey the obligations of the tribunal. ABA Op.93-378('93).

The Oregon Bar Assn. also issued an opinion concluding that an attorney is ethically prohibited from initiating ex parte contact with an expert witness retained by opposing counsel. Or.St.Bar Assn, Formal Op.1992-132('92). The Oregon opinion reasoned that R.26(b)(4) provides that the facts known and opinions held by experts may be obtained only as provided by the Federal Rules. The opinion further stated: "It would be more accurate to say that the federal rules expressly forbid discovery of the facts and opinions of experts except through written interrogatories, or otherwise by court order or agreement of the parties." Id. The opinion concludes that an attorney who initiates ex parte communications with an adversary's expert disobeys the rule of professional responsibility which prohibits intentional violations of an established rule of procedure. Id.

In the present case, Combs hired plaintiff's expert, Dr. Grimm, to examine a lock for another case. The consultation between Combs and Grimm took place out of the presence of Erickson. By his employment of Grimm, Combs entirely circumvented the discovery rules because Combs achieved unsupervised access to plaintiff's expert. Thus, applying the reasoning in the ABA Op., Combs violated NV.R.173(3) by disobeying the discovery obligations of the court.

More importantly, Combs' actions had a prejudicial effect on Erickson's ability to present his case. Erickson believed he could no longer use Grimm to testify at trial to the alleged defects in the walls of his motor home as planned because he did not know what had transpired during the Combs/Grimm meeting. It took him more than three months to locate Grimm and there were no other qualified experts in Nevada. And Bennett, the other expert present during the Combs/Erickson argument, now refused to testify at trial because the "attorneys [were] bothering the witnesses." Thus, two months before trial, Erickson lost two critical experts he was unable to replace, and had no metals or chassis expert at trial. Therefore, Combs' misconduct was prejudicial to the administration of justice because it severely impeded Erickson's ability to present his case to the court. See NV.R.203(4).

Combs' behavior is particularly disturbing because Combs took advantage of the fact that Erickson was acting pro se. In layman's terms, Erickson labeled the employment offer to Dr. Grimm "a bribe". This may not be a fair characterization. However, attorneys must use their common sense to avoid conduct which could appear to be an improper attempt to influence a witness who is about to testify. We will never know Combs' actual motivation in making an offer of employment to Grimm. Regardless of motive, at a minimum, the offer put Grimm in the position of having divided loyalties. Quite simply, this court chooses to abide by the ageless wisdom that a person cannot serve two masters.

In sum, the district court abused its discretion by failing to address the claim of unethical conduct in the form of witness tampering. The court erred by incorrectly analyzing the issue as a case of a "switching sides" expert. We must now consider the appropriate sanction for this ethical violation.

B. Appropriate Sanction

Federal courts have inherent powers to manage their own proceedings and to control the conduct of those who appear before them. By invoking the inherent power to punish bad faith conduct which abuses the judicial process, a court must exercise discretion in fashioning an appropriate sanction. Chambers v. Nasco, 501 U.S. 32 ('91).

District judges have an arsenal of sanctions they can impose for unethical behavior. These sanctions include monetary sanctions, contempt, and the disqualification of counsel. In Gas-A-Tron v. Union, 534 F.2d 1322 (9th Cir.'76), this court recognized that a district court has the primary responsibility for controlling the conduct of the attorneys who practice before it. In Gas-A-Tron at 1324, we stated:

Whenever an allegation is made that an attorney has violated his moral and ethical responsibility, an important question of professional ethics is raised. It is the duty of the district court to examine the charge, since it is that court which is authorized to supervise the conduct of the members of its bar. The courts, as well as the bar, have a responsibility to maintain public confidence in the legal profession. This means that a court may disqualify an attorney for not only acting improperly but also for failing to avoid the appearance of impropriety.

In the case at bar, Erickson raised his claim of unethical conduct. The district court abdicated its duty to examine the charge of unethical behavior and impose the necessary sanctions.Id. If the district judge had addressed the ethical issues implicated by Combs' behavior prior to trial, he could have fashioned an appropriate sanction for the violation and remedied the problem then. However, the court failed to sanction the unethical conduct and it must now be addressed after both sides have expended the resources to go to trial.

Defense counsel's witness tampering deprived Erickson of two essential expert witnesses in a complex products liability case, thereby preventing him from receiving a fair trial. Thus, he is entitled, at a minimum, to a new trial. See Burke v. Vose, 847 F.Supp. 256 (D.RI.'93). ("Witness tampering like perjured testimony tends to subvert the entire judicial process and its principle function of ascertainment of the truth."). Finally, Combs attempted to actively mislead the district court by stating (falsely, as he now candidly admits) that he solicted Dr. Grimm only after his deposition.

CONCLUSION

The judgment of the district court is reversed and the case is remanded for a new trial. The court is instructed to impose appropriate sanctions and disciplinary action upon defense counsel.

Footnotes

* Hon. Wm. Fremming Nielsen, U.S. Dist. Judge, E.D. WA, sitting by designation.

1. 15 U.S.C. 2301 et seq.

2. Prior to trial, defendant R.V.'s Unlimited was dismissed with prejudice pursuant to a stipulation and isn't party to this appeal.

3. In his affidavit opposing Erickson's Tampering Motion, Combs stated that his offer of employment to Dr. Grimm was after he had deposed him. However, at oral argument Combs directly contradicted his sworn statement, admitting he made the offer before the depo.

4. ABA Model Rule 3.4(c)('83) was adopted in Nevada as NV.R.173(3). It states: "A lawyer shall not [k]nowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists[.]"

5. In 1993, the time at issue, R.26(b)(4) provided in pertinent part:

(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

   (A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.   (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions ... as the court may deem appropriate.

   (B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

6. ABA Model Rule 8.4(d)('83) was adopted in Nevada as NV.R.203(4)('86).

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