Summary: Ex Parte communication with a court appointed Child Custody Expert Witness ruled inappropriate.
Background: In the Matter of Kenneth C. v. Delonda R., 2006 NY Slip Op 50026(U) [10 Misc 3d 1070(A)], the court address the question of whether a parties communication with a court-appointed Child Custody Expert Witness is unethical, and whether such ex parte contact interfere with the expert witnesses neutrality.
During the course of the trial, the attorney for the mother in the child custody case sent letters to the court appointed Forensic Psychology Expert Witness. He also including copies of investigations concerning the alleged medical neglect allegation against the father. The family law attorney further offered to meet with the Child Custody Expert Witness to discuss the case. The letter ended with a request the expert witness reconsider the previous child custody recommendation. The court appointed expert witness did not respond to the letter.
The attorney for the mother then sent a second letter to the child custody expert witness stating that there had been new developments, and that these new facts could change your view in regards to the custody of the child. These new items included that there was an investigation that the mother did not abuse the daughter, and that the father lied about those charges; the father did his own investigation, and had other investigate the child; the father gave prescription drugs to the child; there was medical neglect; and the father was angry at the investigations.
In the letter, the attorney stated to the Child Custody Expert Witness that he had records that should be reviewed regarding counseling of the family. It was also suggested that the forensic psychologist again speak with the mother and father.
In his defense, the attorney for the father claimed that his reason for contacting the court appointed expert witness was to get his opinion as to the necessity of getting a new evaluation and report. Otherwise, the attorney believed that he was not using judicial resources wisely by filing a motion. The attorney claimed that the American Bar Association Guidelines did not stop him for contacting the Child Custody Expert Witness because the expert was a not a party represented by an attorney.
The court cited both the ABA Rules on Professional Conduct and the New York State Bar Association’s Lawyers Code of Professional Responsibility that prohibit communications with those not represented by counsel. The ABA Standing Committee on Ethics and Professional Responsibility opined on whether an attorney representing a party could have ex parte contact with an expert witness retained to testify for the other side without seeking permission. Interestingly, the committee found that none of the model rule was not a complete bar from attorneys contact such expert witnesses without first asking opposing counsel.
Even with this opinion, the standing committee found that such communication could trigger other conduct rules, including those which related to falsifying evidence or assisting an expert witness to testify in a certain manner. There could also be violations of Federal Rules of Discovery concerning discovery.
The New York State Bar Association’s Committee on Professional Ethics first looked at whether an expert witness was considered a “party” under New York law. They determined that ex parte communication with the appointed expert witness permissible. However, there were potential discovery problems with such contact. The court cited case law where counsel was sanctioned who engaged in unauthorized contact. For example, New York’s discovery laws are more restrictive than the federal rules regarding contacting. In this case, the court questioned that If contact with an expert witness is limited during discovery, then why should it be allowed for purposes other than discovery.
Conclusion: The court ruled that even if communication with a Child Custody Expert Witness was allowed in the ABA rules, the court found that the mother’s attorney was essentially “trying” the case before the court appointed expert witness with no notification to the opposing party or the court. Such conduct was impermissible, and sanctions were appropriate.