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RE: Ethical Responsibility?

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Roger, See my remarks below,

> -----Original Message-----
> From: Roger Turk [mailto:73527.1356(--nospam--at)compuserve.com] 
> Sent: Wednesday, July 04, 2001 1:51 PM
> To: seaint(--nospam--at)seaint.org
> Subject: RE: Ethical Responsibility?
> 
> 
> (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.

My client in this case was the contractor and he requested I send a copy
of the preliminary report to the owner and insurance company in addition
to his office. He submitted a copy of the report to the HOA in order to
let them know what scope of work I was suggesting that we do based on
the information provided me and the visual inspection I made. I still
have not been paid by the contractor who claims he will pay when the
owner pays him. My contract is with the contractor and not the owner
(just a sidebar issue).
> 
> 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.

In this case, the Expert Witness is generally hired by the attorney and
the work is preliminary review and investigations that provide the
Engineers professional opinions. I suppose the *client* can act
independent of his attorney, but that is not the engineers
responsibility in this case unless the owner hires him directly. I
believe at this point the engineer is responsible to protect the
attorney's information he provides until which time the attorney
releases it or agrees to take further action to correct the defect.

> 
> 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.

Again, this is between the client and his attorney. If the client does
not waive the privledge, then the attorney has full control of the
disemination of the information. 

> 
> 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?

This is a loaded question. The law protects attorneys vehemently as they
do Priests who do confessions (although as a Jew I could be wrong on
this point). The issues are not the same as a Priest upholds
confidentiality to promote people to seek his confidence in order to
absolve the issue. The attorney can not absolve the issue until it is
settled out of court or litigated. Until that time, the information that
the attorney receives has a bearing upon the quality of his case and
until it litigates, he does not have to disclose his documents -
including the engineers report. I suppose one reason is that although
the engineers who represents him can issue a report that is
contradictory to his case, there can be other issues or sides which may
be investigated before the report is diclosed to the other side. 
Of course, I am speculating here, but I do believe that the engineer's
responsibility lies with the protection of the lawyers case until he is
released. I don't agree with it, but I do believe this is the intention
of the legal system when it comes to a lawyers case.
Confused? I think I am??>)


> 
> 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.)

I don't know about this, although I've have found out the names of any
engineer who provided consulting opinions to an attorney who was
required by law to determine if the case has merit. It would be a shame
if an engineer couldn't face his accuser.
> 
> 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

I hope you are right as I do believe that an engineers responsibility is
to protect the safety of the public at all costs - even if it destroys
the attorney case. However, if there is a chance that he would be
tainted the case, his professional opinions must be beyond reproach.

Dennis
> 
> 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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