960190 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 960190

Rules: 4.3;4.2

Transactions with Persons other than Clients

Dealing With Unrepresented Persons

QUESTION: Attorney A represents the plaintiff. Attorney B represents the defendant. Attorney A retains an expert. Attorney A refuses to designate the expert as an expert to be used at trial. Attorney B believes that the expert´s opinions will be helpful to the defense. May Attorney B contact the expert? May Attorney B require the deposition of the expert? ANSWER: The Rules of Professional Conduct do not prohibit Attorney from talking to the expert while no case is pending. If a case is pending, the Rules do not prohibit Attorney from interviewing the expert as long as such an interview does not violate the rules of discovery. Whether such contact would violate the rules of discovery is a legal question beyond the scope of an informal advisory opinion. If Attorney does contact the expert, regardless of whether a case is pending, Attorney must comply with Rule 4 dash–4.3 if the expert is not represented by counsel. If the expert is represented by counsel, under Rule 4 dash–4.2, Attorney must go through the expert´s counsel to contact the expert.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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