The Rules You Bring to the Engagement

By Noah Bolmer

The standards governing an expert’s profession remain relevant throughout an engagement, even when the legal process imposes its own expectations on the expert’s conduct. Those professional standards can shape what an expert may disclose, the roles an expert can occupy, and the opinions an expert can responsibly offer on top of what the law already demands. In many engagements, professional obligations and the demands of the assignment align without difficulty. In others, they can impose different or additional requirements that affect how the work can be performed. The expert must recognize all of their obligations early, determine how they apply, and note any areas where there may be conflicts between obligations and expectations.  

Obligations That Carry into an Engagement 

Experts often enter an engagement with professional obligations that inform the assignment. Those obligations can arise from licensing requirements, professional codes, trade-association standards, or established practices within a field, and can concern issues such as confidentiality, specialized knowledge, competence, or the use of information obtained through earlier work.  

The National Society of Professional Engineers (NSPE) addressed this directly in an ethics opinion involving an engineer who had been retained to study the causes of a dam failure. The contractor involved in the project later engaged the engineer as an expert in a claim against the government for additional compensation. NSPE held that accepting the engagement was unethical because the engineer had acquired specialized knowledge of the project through his earlier work, and there was no indication that the government had consented to the new engagement. The Board also noted that the engineer would rely on firsthand knowledge and could be asked to address the same facts he had previously investigated, creating a risk of disclosing privileged or confidential information. 

A different NSPE opinion involved an engineer who had previously performed studies for an electric utility and was later asked to testify for a party opposing the utility. NSPE concluded that the testimony would be ethical, provided the engineer was not asked to address the studies she had performed for the utility. The Board distinguished testimony concerning the engineer’s prior work from testimony based on her independent expertise. 

When Professional Roles Overlap 

Professional obligations can also arise from a role that continues alongside an expert engagement. Responsibilities attached to one role can affect the independence, confidentiality, or judgment required in another. Psychology provides a particularly clear example. The American Psychological Association’s (APA) Specialty Guidelines for Forensic Psychology identify multiple relationships as a potential source of impaired impartiality, competence, or effectiveness and specifically address situations in which a psychologist provides both therapeutic and forensic services to the same person. The guidelines encourage referral to another qualified provider when concurrent or sequential therapeutic and forensic roles could impair objectivity or cause harm. 

The distinction is important because the APA does not treat every instance of testimony by a treating psychologist as forensic practice. The guidelines specifically recognize that a treating practitioner may provide testimony about matters such as a patient’s history, diagnosis, treatment, or prognosis. A different set of concerns arises when the practitioner assumes a forensic role and offers opinions on psycho-legal issues. In that circumstance, the existing therapeutic relationship can (or appear to) affect the psychologist’s ability provide an impartial forensic opinion. The guidelines call for the psychologist to consider the conflict, disclose relevant limitations, and refer the work when appropriate. 

Accounting presents a different version of the problem. Under the AICPA’s independence rules, providing expert witness services or expert testimony for a client for whom the account performs attest services generally impairs the accountant’s independence, subject to specified exceptions. The rules also distinguish expert services from fact-witness testimony based on the accountant’s direct knowledge from prior professional services. An accountant evaluating a proposed assignment therefore has to consider the existing professional relationship and the nature of the proposed testimony. 

When Professional Standards and Legal Protections Diverge 

The legal system’s treatment of an expert’s conduct does not necessarily resolve the professional question. In Bruce v. Byrne-Stevens & Associates Engineers, the Washington Supreme Court held that witness immunity protected an engineer from a negligence claim based on an expert opinion about the cost of repairing property damage caused by ground movement. The engineer had underestimated the cost of repairs, and the property owners claimed that his estimates and testimony had caused them to recover less than the actual cost of restoration. The court held that witness immunity barred the claim, reasoning that the doctrine protects the integrity of the judicial process by allowing witnesses to testify fully and frankly. It therefore extended immunity beyond the testimony itself to the engineering work and communications underlying the opinion. 

Deatherage v. Examining Board of Psychology involved a different form of protection. A Washington licensing board brought disciplinary proceedings against a psychologist for conduct arising from his work in several child-custody evaluations, including failures to qualify statements, verify information, and properly interpret test data. The psychologist argued that witness immunity barred the disciplinary proceeding because the challenged conduct occurred while he was acting as an expert witness. The Washington Supreme Court rejected that argument, holding that absolute witness immunity does not extend to professional disciplinary proceedings, explaining that disciplinary proceedings serve different purposes, including protecting the public and the integrity of the profession. 

Profession-Specific Restrictions on Expert Work 

Some professional standards address expert work directly and impose requirements that apply because of the professional role involved. The AMA’s Code of Medical Ethics, for example, provides specific guidance for physicians serving as expert witnesses. It states that physicians should testify only in areas where they have appropriate training and recent, substantive experience and knowledge, evaluate cases objectively, and provide an independent opinion. It also calls for testimony to reflect current scientific thought and accepted standards of care, while appropriately characterizing theories that are not widely accepted within the profession. The guidance further states that physicians should not allow financial compensation to influence their testimony and should not accept compensation contingent on the outcome of litigation. 

Some of these concerns overlap with the requirements governing admissibility under Federal Rule of Evidence 702. Rule 702 addresses an expert’s qualifications, the sufficiency of the facts or data underlying the opinion, the reliability of the principles and methods used, and their reliable application to the facts. The AMA guidance addresses some of the same territory while also establishing professional expectations concerning independence, current knowledge, and compensation. The Code is ethical guidance, however, and does not itself establish the legal requirements for admitting expert testimony. 

Professional rules can also attach consequences to expert witness conduct. Texas’s rules governing architects, for example, expressly identify certain conduct by an architect serving as an expert witness as a dishonest practice subject to discipline. Upon a court finding that the architect knowingly gave false testimony or agreed to receive payment contingent on testimony expressing a particular opinion, the rule provides a basis for professional discipline. 

The Texas rule reaches a different point in the relationship between professional obligations and expert work. The professional requirement does not depend on whether the testimony is admissible under the rules of evidence. Instead, specified conduct during the expert assignment can have consequences within the profession itself. 

What Obligations Should Experts Consider? 

Professional obligations should be part of the analysis when an engagement is being evaluated beyond basic conflict checks, not an issue reserved for situations in which a problem has already arisen. The relevant requirements will vary by field and by the circumstances of the assignment, so the review should focus on the obligations that attach to the proposed work. Before accepting an engagement, consider: 

• Existing relationships: Does the assignment involve a current or former client, patient, employer, or other professional relationship that creates additional obligations? 

• Concurrent roles: Are you serving another professional function involving the same person, organization, information, or subject matter? 

• Professional standards: Does your licensing board, professional association, or governing code impose requirements specifically applicable to expert work? 

• Information restrictions: Can the information needed for the assignment be used or disclosed for this purpose under the obligations attached to how you obtained it? 

• Scope of opinion: Does your profession limit the subjects on which you can offer an opinion, the qualifications required to address them, or the basis on which you may form that opinion? 

• Assignment terms: Do the proposed compensation, role, or other conditions of the engagement conflict with professional requirements? 

Conclusion 

An expert engagement does not exist independently of the professional framework in which the work is performed. That framework can determine who may accept an assignment, what information may be used, how an opinion may be formed, and what consequences may follow from the work. The most reliable approach is to identify those professional constraints early, account for them as the assignment develops, and always keep your engaging attorney informed of any impact professional responsibilities may have on your engagement. 

If you’d like to be considered for expert witness opportunities, join Round Table Group. For over 30 years, we’ve connected litigators with the most qualified experts across disciplines. Call us at 202‑908‑4500 or sign up today to learn more.