Here's a quick real world example of a professional ethics problem. A client who is a defendant in a lawsuit wants to retain you as a survey expert. That same day, another one of the defendants in the lawsuit asks about retaining you to establish a particular fact that is in dispute about the original land grants of which the land that is the subject of the lawsuit is a part.
Insofar as you know, the interests of both prospective clients would be served by the same finding as to the original grant and conversations with both clients bear this out.
What ethical constraints, if any, restrict a surveyor's ability to serve both clients, in this situation, assuming that both retainer checks clear the bank?
They need to have their respective attorneys draw up an agreement between them to authorize, and mutually pay in some proportion to their relative benefit, you to develop your opinion as to specific items of concern. You have a single contract with a singular goal: derive a summary opinion on said items of concern. The chips will fall however they fall. You are not specifically an advocate for the defendants. You are an independent third party offering the court a wizened opinion that may or may not have any impact on the decision rendered relative to either party.
> Here's a quick real world example of a professional ethics problem. A client who is a defendant in a lawsuit wants to retain you as a survey expert. That same day, another one of the defendants in the lawsuit asks about retaining you to establish a particular fact that is in dispute about the original land grants of which the land that is the subject of the lawsuit is a part.
>
> Insofar as you know, the interests of both prospective clients would be served by the same finding as to the original grant and conversations with both clients bear this out.
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> What ethical constraints, if any, restrict a surveyor's ability to serve both clients, in this situation, assuming that both retainer checks clear the bank?
I am curious, how can there be two defendants in the same lawsuit? Either way, I am thinking just tell the truth and you will be fine.
Are they co-defendants in the same case? Are they both represented by the same attorney? I don't see an ethical problem if the answers are both "yes". I thought the attorney was the one that identified expert witnesses in the case that he/she is presenting.
I'm being careful talking about this, I hope, but there's a case starting week after next where I am listed as an expert and two different cases have been linked because of similar issues and parties involved. I was retained by an attorney for one group of people, that attorney withdrew, another attorney took over for them and might have now withdrawn or "substituted out" is the term they use. There's the parallel case where another party hired a law firm where one attorney was the attorney of record, they assigned another attorney from the firm, that firm went out of business and she's still working on it from her new firm and I don't even know if the other group is even represented by anybody at this point. I just met with her yesterday and apparently I'm still her expert even though I started out as the expert for the other group.
I hope they settle.
> Are they co-defendants in the same case? Are they both represented by the same attorney?
Yes, they are both named as defendants, but they have separate counsel.
The issue, of course, is a potential conflict of interest. That is solved by disclosure to both parties of an arrangement by which the surveyor would provide services to both. Since it it conceivable that the parties interests may diverge at some point, I don't see any problem as long as it is understood that the nature of services is to develop the facts relating to some particular element of the case where both agree that their interests coincide, with a provision for termination in the event that things develop otherwise.
Kent
Right. Even though they are defendants in the same case, their interests are bound to be somewhat different. Of course, all you can do is tell the truth as you know it if asked a direct question, but in some cases, you're better off not even investigating issues that could lead to conflicts of interest like that so you can honestly say "I don't know".
I enjoy the research and the involvement in the legal system because the issues are interesting to me, but the process is somewhat inherently sleazy when you can tell the attorneys are interested only in winning rather than any search for the truth. That's the way it works though and I would expect nothing less of an attorney representing me, knowing that the other side is doing the same thing.
I've been in court before when the judge just tells the attorneys to shut up and he starts asking the questions. I like that. He gets sick of the game-playing and just wants to know what's going on. It'll never happen but it would be great if there would be judges specializing in certain fields and they would sit down across a table and the experts would give their opinions without a bunch of "I object"'s for days. It would be so much quicker and probably reach a more realistic conclusion.
I spent a very shot time as a real estate agent. I never made a sale and my surveyor fortunes tuned at just the right time. But from my limited time in real estate this sounds a lot like dual agency:
* The Agent will deal with the Buyer and the Seller impartially
* The Agent will have a duty of disclosure to both the Buyer and the Seller
* The Agent will not disclose that the Buyer is willing to pay a price or agree to terms other than those contained in the Offer, or that the Seller is willing to accept a price or terms other than those contained in the Listing
* The Agent will not disclose the motivation of the Buyer or the Seller to sell unless authorized by the Buyer or the Seller
* The Agent will not disclose personal information about either the Buyer or the Seller unless authorized in writing
* The Agent will disclose to the Buyer the defects about the physical condition of the Property known to the Agent
Damn, it's got to be hard working for both sides!
Kent
> Right. Even though they are defendants in the same case, their interests are bound to be somewhat different. Of course, all you can do is tell the truth as you know it if asked a direct question, but in some cases, you're better off not even investigating issues that could lead to conflicts of interest like that so you can honestly say "I don't know".
Well, it seems to me that the better arrangement in this particular situation is to limit the scope of services to one or the other of the parties to just some particular fact question where both parties interests coincide in the answer. In this case, the fact question has to do with whether a vacancy exists between certain original land grants and whether a particular tract is entirely out of patented surveys (Texas talk for land grants to which patents have been issued). That is a very clean issue with a "yes" or "no" answer in this case.
> I spent a very shot time as a real estate agent. I never made a sale and my surveyor fortunes tuned at just the right time. But from my limited time in real estate this sounds a lot like dual agency:
>
> * The Agent will deal with the Buyer and the Seller impartially
> * The Agent will have a duty of disclosure to both the Buyer and the Seller
> * The Agent will not disclose that the Buyer is willing to pay a price or agree to terms other than those contained in the Offer, or that the Seller is willing to accept a price or terms other than those contained in the Listing
> * The Agent will not disclose the motivation of the Buyer or the Seller to sell unless authorized by the Buyer or the Seller
> * The Agent will not disclose personal information about either the Buyer or the Seller unless authorized in writing
> * The Agent will disclose to the Buyer the defects about the physical condition of the Property known to the Agent
I'm pretty sure that all those ethical canons for realtors have been revised. The new rules are:
- The agent will deal with the buyer and the seller impartially unless it will hold up the closing.
- The agent will have a duty of disclosure to both the buyer and the seller of any matter that will potentially hold up the closing, but only if it doesn't.
- The agent will not disclose that the buyer is willing to pay a price or agree to terms other than those contained in the offer, unless it will expedite closing the sale.
- The agent will not disclose the motivation of the buyer or the seller to sell unless it will be helpful in closing the sale.
- The agent will not disclose personal information about either the buyer or the seller unless they are difficult people who are holding out on closing the sale.
- The agent will disclose to the buyer the defects about the physical condition of the property known to the agent, aside from those that my seriously delay or kill the sale.
Frank
It's not both sides, it two parties on the same side but with undoubtedly slightly different issues.
Kent - That's pretty much what I was trying to say. Get both defendants to agree what they want you to investigate and testify about and if the plaintiff's attorney starts asking you about other stuff, you can honestly say you weren't asked to develop an opinion about that and you don't know the answer to his/her question. That's what I spent 4 hours saying in a deposition in the case I'm talking about. I could have developed opinions about those issues but I wasn't asked to by my clients, so I couldn't testify to them in deposition. Now, if my clients asked me to develop opinions about those issues between depo and trial and I start spouting off about them in court, the other side can object because my opinions about that stuff weren't disclosed in declarations during discovery. Like I know what I'm talking about, but that's the drift I get from my involvement in these things.
I Agree, Two defendants, OK
Now it is possible that you could prove surveying wise, for the plaintiff and the defense, but ethically, no.
Paul in PA
> The issue, of course, is a potential conflict of interest. That is solved by disclosure to both parties of an arrangement by which the surveyor would provide services to both. Since it it conceivable that the parties interests may diverge at some point, I don't see any problem as long as it is understood that the nature of services is to develop the facts relating to some particular element of the case where both agree that their interests coincide, with a provision for termination in the event that things develop otherwise.
When you are hired as an expert witness, you are presumed to be a "disinterested third party." Your duty is to "assist the trier of fact" (the judge) "understand the evidence or to determine a fact in issue." As such, it's pretty hard to have a "conflict of interest." Being an expert is all about reviewing the evidence, determining the pertinent facts based upon the evidence, applying the principles of law or standard practice, and formulating your opinion. If your opinion changes because of who you're working for, then you aren't "disinterested" and you aren't guarding your position as an expert.
That said, there is nothing wrong with an expert being retained by one, two or more parties, even if they are on opposite sides of the case. I would much rather be hired as a joint expert, than to work for one side only and have the appearance of "taking sides" or being accused of being a "hired gun." That's not the way it usually happens, though. The parties will tend to seek out an expert who agrees with them. All they want to do is win. That's why they hired an attorney. He's their advocate. It's really not as "sleazy" as it might seem. He's just doing his job.
That said, it's all in the disclosures and the scope of work to be performed. Make sure all parties know what you are retained to do and who is paying for your professional service. Make sure you've got a good outline of what your scope is, and what opinions you are being asked to formulate. Then do you job. You will always, as with every job you perform, need to be cognizant of disclosing privileged information you may hear during visits with the clients and attorneys. If you are given information that is pertinent to the formulation of your opinion, it's not privileged. If you are given information regarding strategies, arguments, etc., that don't bear upon your opinion, then it's privileged and shouldn't be disclosed in your expert report.
That leads me to the last thing to consider... Your expert report. Especially when hired by more than one party but, for me, its become nearly always, make sure your scope includes the preparation of a written expert report. It's the best way for you to disclose your opinions and the evidence, rules, standards or principles you relied upon to formulate those opinions. Read and understand the Rules of Civil Procedure if you're going to be playing the expert witness game. Has your state adopted Federal Rule 26(a)(2) or a similar version?
JBS
Thanks to JB for weighing in on this thread.
As to the real estate comparison, in our State dual agency is illegal. There is, however, what is known as a transaction broker. The transaction broker handles all paperwork without providing any service that would be contrary to either the buyer or the seller. Examples would include telling the buyer that the seller is willing to drop the price or telling the seller that the buyer is willing to pay all closing costs because he wants to close ASAP. The transaction broker lists the property, but, may also assist the buyer in identifying potential lenders, for example. That will assist both buyer and seller in completing their transaction.
The Conflict of Interest
> When you are hired as an expert witness, you are presumed to be a "disinterested third party." Your duty is to "assist the trier of fact" (the judge) "understand the evidence or to determine a fact in issue." As such, it's pretty hard to have a "conflict of interest."
In the actual real world of litigation, things are naturally a bit more complex. Parties who are litigating a particular fact issue and have an interest in the outcome are naturally going to gravitate to experts to assist them in proving up their claim. The idea that many land-related issues subject to litigation are so black and white that any expert will do for either side is fun, but simply not descriptive of the actual process.
The Conflict of Interest
> land-related issues subject to litigation are so black and white
What cookbook did you read that in?;-)
Douglas Casement
Darn, had to look outside to see if all is frozen?
I agree with Kent!
Keith
The Conflict of Interest
>The idea that many land-related issues subject to litigation are so black and white that any expert will do for either side is fun, but simply not descriptive of the actual process.
The reality is that most matters in litigation have arguments that may be made for both sides. What in effect J.B. is evidently claiming is that surveyors will not differ in their opinions and will cite exactly the same facts to arrive at identical conclusions, so that it doesn't matter which side engages a particular expert. I realize that there are no differences of opinions on Beerleg.com, but in the real world things are quite different.
Well said JB. Too many surveyors seem to think that being an expert is formulating an opinion contrary to the evidence and being an advocate for their client. I have seen this happen in one case I was involved in where nationally respected surveyors/lecturers got caught between a rock and a hard place because their testimony conflicted with the evidence and their opinions weak due to trying to be an advocate for their clients without reviewing the facts or evidence beforehand. (See U.S. District Court Case 86-0128-B) What was interesting in this case was the original defendants realigned as Plaintiffs against one remaining defendant. The facts, evidence, principles of law and opinions remained the same thus my testimony remained the same from discovery to litigation. Defendant or Plaintiff makes no difference. Being an expert is researching a case, formulating opinions and telling your client you ethically cannot take the case due to conflict with your knowledge of boundary law, principles and formulated opinion. Last month I was asked for the first time to be retained as an expert for the plaintiff where the defendant was a surveyor…When they told me the defendant was another unnamed surveyor it didn’t take me very long to say NO and relieve the sick feeling in my stomach. Facts, evidence, whatever it just made me sick to think of it even if the surveyor was the worst surveyor in the world….I just couldn’t “do it”.
Pablo
>Being an expert is researching a case, formulating opinions and telling your client you ethically cannot take the case due to conflict with your knowledge of boundary law, principles and formulated opinion.
Yes, that is the obvious potential for conflict of interest when you are retained by two parties to a lawsuit whose interests may diverge in the course of litigation.
"What ethical constraints, if any, restrict a surveyor's ability to serve both clients,"
None
Have a great weekend!