We have previously written on the subject of the attorney's responsibility to pay an
expert that he hires. The Washington State Bar has issued a "Formal Opinion", #
140, on Expenses of Litigation which is published below. This opinion is general in nature
and covers the payment for services which is deemed to cover expert fees.
The hiring attorney and the hired expert must be sure that there is an understanding before services are rendered as to who will pay the expert. Since the expert seldom meets the attorney's client when he is retained, he does not have the opportunity to evaluate the ability of the client to pay.
As a personal matter, I will not work as an expert unless it is understood that the attorney for whom I am working is responsible for all fees including those which by court rules may be the responsibility of an attorney deposing me for discovery purposes.
"An opinion has been requested concerning the ethical responsibility of an attorney who..., in connection with litigation retains the services of an accountant, physician, court reporter, investigator, title insurance company, etc., so far as concerns payment by the attorney for witness fees and other services rendered.
"Clearly the attorney may not agree to pay such expenses upon behalf of his client without an agreement by the client to reimburse such advances so made. On the other hand an attorney may, subject to the right of reimbursement from the client and the duty of the client to reimburse, advance expenses of litigation, Canon 42.
"However, when the attorney has directly and personally ordered or arranged for services in circumstances under which he, the attorney, did not make it clear (if such were his intent) to the person rendering the services that such person must look to the client alone for payment, the attorney has been derelict in his responsibility of preserving a good public image of the legal profession. The primary responsibility of making it clear that the attorney acts in an agency capacity with no personal liability rests upon the attorney. If he has been derelict herein, others may reasonably be misled into believing that the attorney is agreeing to pay or to guarantee the payment of the obligation so created. In this circumstance it would be the ethical obligation of the attorney to pay such indebtedness and then to look to his client for reimbursement and assume the risk of nonpayment.
"Public trust and confidence would be greatly endangered and jeopardized by the assertion of a technical defense of 'disclosed agency', even if the same be a valid defense." (See Christenson v. Dept. Of Revenue, 97 Wn. 2d3).
Home ! Search
Page ! Master index ! Table of Contents
for this Issue