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Ethics Opinion #29
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Whether it is ethically permissible to
conference trial strategy at a meeting at which the defendant
doctor, the expert doctor, and the attorney are present.
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RICHMOND COUNTY BAR ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
OPINION # 29
February 24, 2000
Leonard A. Robusto, Esq.
Law Offices of Cohen & Goldstick
7 World Trade Center, .21st Fl.
New York, NY 10048
Dear Mr. Robusto:
I am in receipt of your letter dated February 11, 2000 inquiring about the ethical propriety of certain situations related to trial strategy.
First, you ask if it is “ethically permissible to conference trial strategy at a meeting at which the defendant doctor, the expert doctor and the attorney are present”. Nothing in the Disciplinary Rules prohibits a lawyer from participating in such a conference per se, so long as the attorney does not become privy to information which makes it clear that either the defendant or the expert will give false testimony (DR 7-102(A) (4), (6) (7)). In such case, the lawyer must take action to rectify the situation. (DR 7-102(B)).
Secondly, you ask the same question, but in this scenario, the attorney is not present. The Disciplinary Rules are not binding on non-lawyers; thus, they appear free to discuss such matters.
Whether notes taken at such meetings are subject to disclosure is a question of law beyond the bounds of the opinion of the Ethics.Committee.
You also ask whether it is “ethically permissible for the expert to discuss the case and the probable testimony of the expert with the defendant after the defendant has testified but before the expert testifies”.. Again, the Disciplinary Rules are not binding on the conduct of non-lawyers, and whether such witnesses are precluded from discussing their testimony is a question of law beyond the scope of any opinion of the Professional Ethics Committee.
As an aside, I believe you are confusing matters of ethics (i.e. permissible or impermissible attorney conduct) with matters of trial strategy. The fact that the expert discussed his testimony with the defendant at any time may be brought t out on cross- examination, raising negative inferences affecting his or her credibility before the jury. Again, this is a question of what is successful and appropriate triàl. strategy, a subject over which reasonable attorneys may differ; it is not a matter of Ethics as regulated by the Disciplinary Rules.
Pursuant to Article VI, Section 19 of the R.C.B.A. By—Laws, please be advised that the statements contained herein express the opinion of the Committee alone, and have not been passed upon by the Association.
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Yours truly,
Wayne M. Ozzi
Chairman, Professional
Ethics Committee |
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