More and more courts are finding that federal rule 26 requiring that the expert “prepare” his/her report means that the report needs to be written by the expert and not the retaining lawyer. Some courts have gone so far as to make highly critical comments about the expert whose report was ghostwritten by the lawyer and have even precluded the expert from testifying.
Lawyers are being cautioned about the possible ethical issues in ghostwriting expert witness reports.
An excellent article in the September 2015 issue of For the Defense, titled “Can Federal Rule 26 Both Prohibit Ghostwriting and Protect Expert-Related Work Product?” by William R. Stuart, Esq. addresses this issue in-depth.
The author concludes:
“In practice, the best course for an attorney is to follow Federal Rule 26, which requires an expert witness to prepare his or her report him- or herself and requires an attorney to limit his or her involvement in drafting the experts’ report to ensuring compliance with the reporting requirements in the rules, specifically 26(a)(2)(B)(i) through (vi). Attorneys are not advised to draft an expert’s report and then to produce it as the expert’s when it is instead “made up out of whole cloth,” whether this practice is discoverable or not. Drafting a canned report for an expert will, by all accounts, lead to an ineffective expert who can be discredited on cross-examination. Moreover, this practice constitutes a violation of Federal Rule 26 and could be viewed as an unethical violation of the Model Rules of Prof’l Conduct 3.4 (a lawyer may not “falsify evidence, counsel or assist a witness to testify falsely”) or 8.4 (a lawyer may not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation”). Model Rules of Prof’l Conduct R. 3.4 (specifying that a lawyer may not “falsify evidence, counsel or assist a witness to testify falsely”); Model Rules of Prof’l Conduct R. 8.4 (specifying that a lawyer may not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation”). See also Numatics, 2014 U.S. Dist. Lexis 176759, at *6 (referring to ghost-writing as unethical).
Expert witnesses who are confronted with this issue can resist being involved in ghostwritten reports that they are later asked to sign.