CFC Ethics & Professional Responsibility in Forensics 5 — Questions and Answers
Question 1: A CFC consultant is hired to value intellectual property in a patent dispute and later is approached to serve as a mediator in the same dispute. This situation:
- Is permissible since mediation is a neutral role
- Presents a role conflict because prior expert work compromises the appearance of neutrality in mediation (Correct answer)
- Is acceptable if both parties agree verbally
- Depends entirely on whether the consultant's valuation favored one party
Correct answer: Presents a role conflict because prior expert work compromises the appearance of neutrality in mediation
Serving as both a testifying expert and a mediator in the same matter creates an inherent role conflict that undermines the mediator's required neutrality.
Question 2: Overstating qualifications on a curriculum vitae submitted to the court as a forensic consultant constitutes:
- A minor procedural error correctable at deposition
- Fraud on the court and a serious ethical violation (Correct answer)
- An acceptable practice if the overstated qualifications are substantially similar to actual ones
- A matter solely between the consultant and retaining counsel
Correct answer: Fraud on the court and a serious ethical violation
Misrepresenting credentials submitted to a court constitutes fraud and violates the most fundamental ethical obligations of a forensic consultant.
Question 3: When a forensic consultant uses proprietary software to perform a forensic analysis, the ethical obligation regarding the software is to:
- Keep it confidential since it is proprietary
- Disclose the software's name, version, and known limitations that may affect results (Correct answer)
- Obtain a court order to protect the software's trade secrets before disclosing it
- Use open-source alternatives exclusively to ensure full transparency
Correct answer: Disclose the software's name, version, and known limitations that may affect results
Opposing parties and the court are entitled to know what tools were used and their limitations so the analysis can be properly evaluated.
Question 4: A forensic consultant who is also a licensed attorney is asked to provide both legal advice and forensic expert analysis in the same matter. This is:
- An efficient use of dual expertise
- A problematic dual-role situation that creates conflicts between advocacy and objectivity (Correct answer)
- Permissible with court approval
- Standard practice in small litigation matters
Correct answer: A problematic dual-role situation that creates conflicts between advocacy and objectivity
The advocacy role of an attorney fundamentally conflicts with the objectivity required of a forensic expert, making dual roles in the same matter ethically problematic.
Question 5: Under CFC ethics, what is the appropriate action when retaining counsel instructs a forensic consultant not to disclose certain communications in a deposition?
- Follow the instruction without question since the attorney controls strategy
- Follow instruction only if the communications are legitimately privileged; refuse if it involves concealing relevant facts (Correct answer)
- Ask the opposing counsel what to disclose
- Disclose everything regardless of attorney instruction
Correct answer: Follow instruction only if the communications are legitimately privileged; refuse if it involves concealing relevant facts
A forensic consultant must follow legitimate privilege instructions but cannot withhold non-privileged relevant information at counsel's direction.
Question 6: A CFC consultant is subpoenaed to testify about opinions formed as a non-testifying consulting expert. The consultant's first step should be to:
- Comply immediately since subpoenas are legally binding
- Notify retaining counsel immediately so work-product protection can be asserted if applicable (Correct answer)
- Invoke personal privilege and refuse without legal counsel
- Request the subpoena be dismissed by the opposing attorney
Correct answer: Notify retaining counsel immediately so work-product protection can be asserted if applicable
Consulting expert opinions may be protected as attorney work product; retaining counsel must be notified immediately so appropriate legal objections can be raised.
Question 7: Which standard governs when a forensic consultant may ethically discuss a concluded case publicly, such as in academic publications or speaking engagements?
- Discussion is freely permitted once a final judgment is entered
- Discussion requires removing or anonymizing all identifying information and ensuring no confidentiality agreement prohibits it (Correct answer)
- Public discussion is never permitted regardless of outcome
- Discussion is permitted only with approval from the American Board of Forensic Consultants
Correct answer: Discussion requires removing or anonymizing all identifying information and ensuring no confidentiality agreement prohibits it
Post-case public discussion is ethically permissible only when identifying details are protected and no confidentiality obligations are breached.
CFC Ethics & Professional Responsibility in Forensics 5
A CFC consultant is hired to value intellectual property in a patent dispute and later is approached to serve as a mediator in the same dispute.
This situation: