What is the Expert Witness Code of Conduct?

Expert witnesses need a full understanding of the moral, legal, and financial reasons for acting in an ethical manner. Violating the expert witness code of conduct can be and, in many cases, will be subject to a variety of sanctions including prosecution for perjury, civil suits, monetary sanction by the court, professional discipline, loss of future referrals, and damage to her reputation. We will identify some of the most common ethical violations by expert witnesses and explain how these can be avoided. Read below for a detailed discussion of the expert witness code of conduct.

Excerpted from SEAK’s text, How to be a Successful Expert Witness

23.2 Sample Ethical Codes of Professional Groups

In addition to their legal obligations, expert witnesses are subject to the ethical standards and codes of conduct of their professional organizations and certifying bodies. This is a fertile area of cross-examination. An expert should review the ethical rules governing litigation support with all his relevant organizations. Experts with multiple affiliations and certifications should take care to know, understand, and comply with all of the applicable standards and codes of conduct they are subject to. An instructive sampling of relevant standards and codes is provided below.

Competence and qualifications

“Engineers shall perform services only in the areas of their competence,” and “engineers shall undertake assignments only when qualified by education or experience in the specific technical fields involved.” (NSPE, 2, a)

“A member shall only accept engagements the member can reasonably expect to complete with a high degree of professional competence. If a member lacks the knowledge and/or experience to complete such engagement with a high degree of professional competence, the member is not precluded from performing such engagement. In such instance, the member must take steps necessary to gain such expertise through additional research and/or consultation with other professionals believed to have such knowledge and/or experience prior to completion of such engagement.” (NACVA Professional Standards)

“A Certified Fraud Examiner shall, at all times, exhibit the highest level of integrity in the performance of all professional assignments and will accept only assignments for which there is reasonable expectation that the assignment will be completed with professional competence.” (Association of Certified Fraud Examiners Code of Professional Ethics)

“Members shall not attempt to obtain personal aggrandizement or business engagements by untruthfully exaggerating, embellishing or otherwise misrepresenting their credentials and/or qualifications.” (Forensic Expert Witness Association Code of Ethics)

“A computer professional has a duty to be honest about his or her own qualifications and about any circumstances that might lead to conflicts of interest.” (Association for Computing Machinery (ACM) Code of Conduct, 1.3)

“Engineers shall perform services only in areas of their competence.” (American Society of Civil Engineers (ASCE) Code of Ethics, 2)

“ISA members should accept only appraisal assignments that fall within their professional capabilities.” (International Society of Appraisers—Code of Ethics and Professional Conduct, Rule 4.07)

3.4 Appraiser’s Obligation to Attain Competency and to Practice Ethically

In order to meet his obligations, the appraiser must be competent in his field. This competency he attains by education, training, study, practice, and experience. He must also recognize, understand, and abide by those ethical principles that are interwoven with and are an essential part of truly professional practice.” (American Society of Appraisers, Principles of Appraisal Practice and Code of Ethics)

Honesty and truthfulness

“All physicians must…testify honestly.” (Code of Medical Ethics: Medical Testimony: Current Opinions of the Council on Ethical and Judicial Affairs of the American Medical Association, Opinion E-9.07)

“A member shall remain objective, apply professional integrity, shall not knowingly misrepresent facts or subrogate judgment to others. The member must not act in a manner that is misleading or fraudulent.” (NACVA Professional Standards)

“All traffic collision reconstructionists accredited by ACTAR, therefore, are expected to be honest, impartial, fair and ethical in the services they provide.” (The Accident Commission for Traffic Accident Reconstruction Code of Conduct)

“Relate honestly and ethically in all professional relationships.” (American College of Occupational and Environmental Medicine (ACOEM) Code of Ethical Conduct)

“A Certified Fraud Examiner will comply with lawful orders of the courts and will testify to matters truthfully and without bias or prejudice.” (Association of Certified Fraud Examiners Code of Professional Ethics)

“Engineers in the fulfillment of their professional duties shall avoid deceptive acts.” (National Society of Professional Engineers (NSPE) code of ethics for engineers, I, 5)

“Integrity requires a member to be, among other things, honest and candid within the constraints of client confidentiality. Service and the public trust should not be subordinated to personal gain and advantage. Integrity can accommodate the inadvertent error and the honest difference of opinion; it cannot accommodate deceit or subordination of principle.” (AICPA Code of Professional Conduct)

“Serve the public, employees, employers, clients and the Society with fidelity, honesty and impartiality.” (American Society of Safety Engineers Code of Professional Conduct, 2)

“Honesty is an essential component of trust. Without trust an organization cannot function effectively. The honest computing professional will not make deliberately false or deceptive claims about a system or system design but will instead provide full disclosure of all pertinent system limitations and problems.” (ACM, 1.3)

“Engineers shall be guided in all their relations by the highest standards of honesty and integrity.” (NSPE, III, 1)

“ACFEI members should not misrepresent or overstate their credentials, education, training, experience, or membership status.” (American College of Forensic Examiners Principles of Practice)

“Truthfulness and Candor. (A) In forensic testimony and reports, psychologists testify truthfully, honestly, and candidly and, consistent with applicable legal procedures, describe fairly the bases for their testimony and conclusions. (B) Whenever necessary to avoid misleading, psychologists acknowledge the limits of their data or conclusions.” (American Psychological Association: Ethical Principles of Psychologists and Code of Conduct, 7.03)

Conflicts of interest

“Engineers shall disclose all known or potential conflicts of interest that could influence or appear to influence their judgment or the quality of their services.” (NSPE, 4, a)

“To avoid real or perceived conflicts of interest whenever possible, and to disclose them to affected parties when they do exist.” (Institute of Electrical and Electronics Engineers—Code of Ethics, 2)

“Conflicts of interest and scientific misconduct, such as fabrication, falsification, and plagiarism, are incompatible with this Code.” (The Chemist’s Code of Conduct, The American Chemical Society)

“Objectivity is a state of mind, a quality that lends value to a member’s services. It is a distinguishing feature of the profession. The principle of objectivity imposes the obligation to be impartial, intellectually honest, and free of conflicts of interest. Independence precludes relationships that may appear to impair a member’s objectivity in rendering attestation services.” (AICPA Code of Professional Conduct)

“Members shall not permit themselves to be compromised by conflicts of interest or allow the influence of others to override their objectivity.” (Forensic Expert Witness Association Code of Ethics)

“Conflict of Interest—ISA members must avoid and withdraw from situations that represent a conflict of interest.” (ISA, Rule 4.06)

“Conflict of Interest: Members should avoid conflicts of interest in their professional practices and fully disclose all unavoidable conflicts as they arise.” (American Institute of Architects, Code of Ethics 3.2)

Contingency fees

“Physician testimony must not be influenced by financial compensation; for example, it is unethical for a physician to accept compensation that is contingent upon the outcome of the litigation.” (American Medical Association, Code of Medical Ethics: Current Opinions of the Council on Ethical and Judicial Affairs of the American Medical Association, Opinion E-9.07)

“7.1 Contingent Fees If an appraiser were to accept an engagement for which the amount of his compensation is contingent upon the amount of an award in a property settlement or a court action where his services are employed; or is contingent upon the amount of a tax reduction obtained by a client where his services are used; or is contingent upon the consummation of the sale or financing of a property in connection with which his services are utilized or is contingent upon his reaching any finding or conclusion specified by his client; then, anyone considering using the results of the appraiser’s undertaking might well suspect that these results were biased and self-serving and therefore, invalid. Such suspicion would militate against the establishment and maintenance of trust and confidence in the results of appraisal work, generally; therefore the Society declares that the contracting for or acceptance of any such contingent fee is unethical and unprofessional.” (American Society of Appraisers, Principles of Appraisal Practice and Code of Ethics)

“No engagement shall be undertaken on a contingent fee basis.” (American Society of Questioned Document Examiners, Code of Ethics, Rule 7)

“Contingent Fees. A member shall not perform a valuation engagement which results in the expression of a Conclusion of Value, as defined in §3.2, for a contingent fee.” (NACVA Professional Standards)

Confidentiality

“To treat information received from a client as confidential; and when a matter has already been undertaken, to refuse to perform any services for any person whose interests are opposed to those of the original client, except by express consent of all concerned, or where required by established administrative procedure or by law.” (ASQDE Code of Ethics, Rule 3)

“A member shall not disclose any confidential client information to a third party without first obtaining the express consent of the client, unless required to do so by competent legal authority.” (NACVA Professional Standards)

“A Certified Fraud Examiner shall not reveal any confidential information obtained during a professional engagement without proper authorization.” (Association of Certified Fraud Examiners Code of Professional Ethics).

“When a legal claim pertains to a patient the physician has treated, the physician must hold the patient’s medical interests paramount, including the confidentiality of the patient’s health information, unless the physician is authorized or legally compelled to disclose the information.” (American Medical Association, Code of Medical Ethics: Current Opinions of the Council on Ethical and Judicial Affairs of the American Medical Association, Opinion E-9.07)

Article 7, sec 2.d Unacceptable Conduct. Conviction, judgment or sanction by a court having jurisdiction for any act of breach of confidentiality.” (The Accident Commission for Traffic Accident Reconstruction Code of Conduct)

“Chemists should serve clients faithfully and incorruptibly, respect confidentiality, advise honestly, and charge fairly.” (The Chemist’s Code of Conduct, The American Chemical Society)

“Members shall respect the confidentiality of information acquired during the performance of their service(s) and shall not disclose to a third party any confidential or proprietary information without appropriate and specific authority.” (Forensic Expert Witness Association Code of Ethics)

“Confidentiality—ISA members shall maintain the confidentiality of their relationship with the client regarding the property that is being appraised. The ISA members shall safeguard all appraisal reports and documents from unauthorized scrutiny and/or seizure, unless legally required to make such disclosure.” (ISA, Rule 4.00)

“Confidentiality: Members should safeguard the trust placed in them by their clients.” (American Institute of Architects, Code of Ethics and Professional Conduct, Ethical Standard, 3.4)

“Keep confidential all individual medical information, releasing such information only when required by law or overriding public health considerations, or to other physicians according to accepted medical practice, or to others at the request of the individual.” (ACOEM, 5)

“The principle of honesty extends to issues of confidentiality of information whenever one has made an explicit promise to honor confidentiality or, implicitly, when private information not directly related to the performance of one’s duties becomes available. The ethical concern is to respect all obligations of confidentiality to employers, clients, and users unless discharged from such obligations by requirements of the law or other principles of this Code.” (ACM, 1.8)

Impartiality

2.2 Objective Character of the Results of an Appraisal Undertaking

The primary objective of a monetary appraisal, is determination of a numerical result, either as a range or most probable point magnitude—the dollar amount of a value, the dollar amount of an estimated cost, the dollar amount of an estimated earning power. This numerical result is objective and unrelated to the desires, wishes, or needs of the client who engages the appraiser to perform the work. The amount of this figure is as independent of what someone desires it to be as a physicist’s measurement of the melting point of lead or an accountant’s statement of the amount of net profits of a corporation. All the principles of appraisal ethics stem from this central fact.” (American Society of Appraisers, Principles of Appraisal Practice and Code of Ethics)

“When physicians choose to provide expert testimony, they should…be committed to evaluating cases objectively and to providing an independent opinion.” (American Medical Association, Code of Medical Ethics: Current Opinions of the Council on Ethical and Judicial Affairs of the American Medical Association, Opinion E-9.07)

“To act at all times both in and out of court in an absolutely impartial manner and to do nothing that would imply partisanship or any interest in the case except the proof of the facts and their correct interpretation.” (ASQDE, 5)

“ACFEI and its members are to remain completely objective and use their ability to serve justice by making an accurate determination of the facts involved.” (American College of Forensic Examiners Principles of Practice)

“Being honest and impartial and serving with fidelity the public, their employers and clients.” (ASCE, 2)

Reports, investigations, and opinions

“Engineers shall be objective and truthful in professional reports, statements or testimony. They shall include all relevant and pertinent information in such reports, statements or testimony, which should bear the date indicating when it was current.” (NSPE, 3a)

“Article 7, sec 2.b Unacceptable Conduct. Conviction, judgment or sanction by a court, administrative board or professional licensure review board relating to falsification or spoliation of evidence intended for, or reasonably deemed to be intended for, use in a legal matter.” (The Accident Commission for Traffic Accident Reconstruction Code of Conduct)

“Members shall expeditiously perform forensic services with due care, competence, and diligence only in the fields of their expertise. Members shall utilize standards and controls to provide services in a professional and scientific manner, and in doing so shall conduct objective examinations and analysis and be truthful in reports, statements and testimony.” (Forensic Expert Witness Association Code of Ethics)

“A Certified Fraud Examiner, in conducting examinations, will obtain evidence or other documentation to establish a reasonable basis for any opinion rendered. No opinion shall be expressed regarding the guilt or innocence of any person or party…A Certified Fraud Examiner will reveal all material matters discovered during the course of an examination which, if omitted, could cause a distortion of the facts.” (Association of Certified Fraud Examiners Code of Professional Ethics)

“A member must exercise due professional care in the performance of services, including completing sufficient research and obtaining adequate documentation…A member shall obtain sufficient relevant data to afford a reasonable basis for conclusions, recommendations or positions relating to any service rendered.” (NACVA Professional Standards)

“Integrity also requires a member to observe the principles of objectivity and independence and of due care.” (AICPA Code of Professional Conduct)

“To render an opinion or conclusion strictly in accordance with the physical evidence in the document, and only to the extent justified by the facts. To admit frankly that certain questions cannot be answered because of the nature of the problem, the lack of material, or insufficient opportunity for examination.” (ASQDE, 4)

4.3 Appraiser’s Obligation Relative to Giving Testimony

When an appraiser is engaged by one of the parties in a controversy, it is unethical for the appraiser to suppress any facts, data, or opinions which are adverse to the case his client is trying to establish; or to overemphasize any facts, data, or opinions which are favorable to his client’s case; or in any other particulars to become an advocate. It is the appraiser’s obligation to present the data, analysis, and value without bias, regardless of the effect of such unbiased presentation on his client’s case.” (American Society of Appraisers, Principles of Appraisal Practice and Code of Ethics)

4.4 Appraiser’s Obligation to Document Appraisal Testimony

When a member accepts employment to make an appraisal, or to testify as to value of property before a court of law or other judicial or quasi-judicial forums, the appraiser shall, before testifying, complete an adequate written appraisal report, or have complete documentation and substantiation available in his files.” (American Society of Appraisers, Principles of Appraisal Practice and Code of Ethics)