On Nov 3, 8:23 am, "Stuart A. Bronstein" <spamt...@lexregia.com> wrote:
> Assuming your friend was employed by the wife's attorney, she should
> talk to that person about it, and follow his directions.
Nothing wrong with that advice, generally speaking. But she should not follow his advice if he tells her to jump off a bridge, literally or figuratively. If she has the slightest inkling she may be getting set up as the fall guy if this little hide-the-pea shell game breaks open, she should consult her own independent attorney and follow _his_ advice.
> She has to give the deposition.
Agreed. Assuming she was an expert witness who was retained and named to the other side as someone the wife intended to have testify at trial, if the matter were to go that far.
If she was instead what is called a "consulting" expert, one whose only role is to advise the attorney and his client behind the scenes and who is _not_ expected to testify, the result may be different; in MD, such a purely consulting expert does not even have to be named to the other side, much less made available for deposition. But if so, her knowledge would be shielded by the "attorney work product" privilege, which is NOT the same as "attorney-client privilege".
The reason I doubt that this particular CPA is such a mere "consulting" expert in this case, is that OP (Dick Adams) relates that her figures and conclusions were presented to the other side as part of the evidence the wife intended to rely upon to support her position in the divorce matter, and the opposing attorney knew of her existence by name so he could note her deposition -- which probably means she was identified to him as a testifying expert. That makes the opinions the CPA expressed, and the factual basis for them, fair game for deposition and cross-examination in advance of trial.
> And she might well claim attorney-client
> privilege, if the lawyer recommends that she do so.
The privilege, if any exists, is not hers to claim. She should not go out on a limb and try to play advocate; she is supposed to be an independent, dispassionate expert. If she is asked a particular question at deposition which the wife's attorney believes is covered by any applicable privilege, the attorney will object AND will instruct her not to answer. Then it is the attorney's bad faith, not hers, that may come to light later on.
Although, I must say that if the CPA knew about the hidden assets and would normally have taken them into account in reaching her conclusions, but purposely failed to include them in her reported opinion, she may be in violation of CPA ethics whether or not the wife's attorney claims privilege. To me, such a deception by silence, if she knows her inadequate and incomplete figures are being presented to the other side as complete, negates the whole purpose of having a supposedly independent audit of a person's financial status by a CPA, if the CPA fudges the figures to deceive an opponent.
> But of the husband
> has an attorney who is half way decent, I suspect they'll find out the
> information anyway, one way or another.
Agreed. Which is why, even if the wife's attorney plans to instruct the CPA not to answer on the basis of privilege, the CPA would be taking a huge risk if she allowed her report based on only partial truth to be presented to the other side as complete and said nothing to contradict it. IMO the CPA should tell the wife's lawyer that either he has to let her tell the truth about what she found out or she will withdraw from being the wife's expert.
As you might have guessed, I have very little tolerance for either weasel lawyers, or weasel experts. But let's be clear. An attorney who legitimately keeps the other side completely in the dark about a consulting expert, or about harmful facts that the client revealed to the attorney in confidence, is NOT being a weasel IMO, he is protecting his client. There is no duty to do the other side's investigative work for them by sharing attorney work product that is _not_ intended to be introduced in evidence, or to reveal a client's confidences. But an attorney who tries to get the best of both worlds, keeping the harmful facts secret while presenting an expert opinion to the other side as being one based on _all_ the applicable facts, is cheating the system by affirmatively deceiving the opponent and the court. Serious sanctions apply to such conduct.
And as for the expert, any expert of any kind who is willing to "bend" her opinion beyond the fairly limited bounds of reasonable and truthful "spin" (which consists of choosing her words carefully to show the true facts in the light most favorable to the client's case, but not fudging the underlying facts) has forfeited all credibility and shot herself in the foot as far as ever getting such an assignment again, if her deception comes to light. The members of the bar _do_ talk to each other, and they keep track of experts who have embraced such a Faustian bargain, and more than one of them has been driven out of the witness business.
I would love to debate, on this newsgroup, anyone who may feel differently.
--
This posting is for discussion purposes, not professional advice.
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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