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RE: Ethical Responsibility?

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(I started this post early this morning but held on to it as I thought that 
two long posts on the same subject, one after another, would be excessive.  
Christopher Wright's comments on the attorney-client privilege made me 
resurrect this post.

Dennis,

Why do you send your reports to so many people?  Unless my client requests 
that I send copies to others, I will only send the report to my client, with 
copies to any other sub-consultants that I may have used.  It will then be 
up to my client to give the report, in its entirety, to other parties of my 
client's choosing.

Perhaps I misunderstand the attorney-client privilege.  The way I understand 
it is that the *attorney* is not required to reveal information provided 
him/her by the client.  It does not prohibit the *client* from revealing that 
information.  If the information is beneficial to the attorney's case, you 
can bet your bottom dollar that it will be revealed.

The attorney-client privilege can be waived by the *client*, as was recently 
done in the case of the collision of the submarine Greenville and the 
Japanese fishery training vessel where the commanding officer of the 
Greenville waived attorney-client privilege in testifying before the court.

The question is, when an attorney hires an engineering expert, who is the 
client and who is the attorney and who invokes the privilege?  The engineer 
is not a party in the case and should not have an interest in the case and 
therefore is not seeking the advice of the attorney.  The attorney, on the 
other hand is seeking advice of the engineering expert.  Should the attorney 
be treated differently than any other client seeking engineering advice?  
Should the request of the attorney to not divulge information to others be 
treated in the same manner as if requested by any other client?

The way I understand it is, if you make a report to an attorney, that 
attorney is not required to make that information public and the report 
cannot be subpoenaed from him/her.  However, if you make a report to an 
individual, that report may be subpoenaed ("produce all records, reports, 
letters, computer files, etc.") by other parties and *must* be produced.

The way that I understand Arizona civil law, attorneys can have a "hidden 
expert" whose identity does not have to be revealed to opposing parties, 
nor can the "hidden expert" be deposed or his/her opinions revealed.  It is 
this "hidden expert" that can act as the "nit-picker" for the attorney and 
not necessarily in an impartial manner.  In the one situation that I was 
asked to be a "hidden expert" after I had submitted my report to the owner, I 
told the attorney what he could do.  (The attorney had apparently withheld my 
report from opposing parties.)

The recent Bridgestone/Firestone tire fiasco is probably going to make it 
illegal/unethical/improper for attorneys to prohibit experts from revealing 
hazardous conditions.

A. Roger Turk, P.E.(Structural)
Tucson, Arizona

Dennis Wish wrote:

. > Arnold Bookbinder let a strong campaign to change the laws that protect
. > information accumulated while under the employ of an attorney as an
. > expert witness. I have the papers that Arnold sent me to follow the
. > legislation that was suppose to overturn the law and act to protect
. > lives before the privacy of the information provided to an attorney. I
. > need to dig for these and it may take some time. Unfortunately, Arnold
. > is not on the Internet and has also started to "ease" into retirement. I
. > know I can obtain more accurate information from him and will post it on
. > the Structuralist.Net forums as soon as I receive it.
. > I'll keep you informed so you understand the issues and problems related
. > to this issue. I am sorry that I can't be more specific as I there are
. > so many issues to stay abreast of and this was one that I was informed
. > of but not directly involved with.

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