Do the Texas Disciplinary Rules of Professional Conduct prohibit a lawyer from retaining an expert or intentionally disclosing confidential information to a prospective expert when the lawyer has no substantial purpose other than to attempt to disqualify or otherwise prevent the expert from being used by an opposing party including testifying on the opposing party’s behalf?
In representing a client in a litigation matter, a lawyer retains an expert to testify on behalf of the lawyer’s client. The subject matter of the litigation is highly specialized, requiring analysis and possibly testimony that is only available from a small number of persons with the requisite expertise. Although the lawyer has no intention of using another expert, the lawyer contacts a second expert and represents that the lawyer is interviewing prospective experts to work and possibly testify on behalf of the lawyer’s client. The lawyer does not reveal that the lawyer has no intention of using the second expert. With no substantial purpose other than disqualifying or otherwise preventing the expert from working for the opposing party, including testifying on the other party’s behalf, the lawyer either retains the second expert or intentionally shares confidential information with the second expert.
Tex. Comm. On Professional Ethics, Op. 676 (2018)