“Most lawyers understand instinctively that we are subject to Chapter 93A when we’re transacting in a business context,” Rossi said. “We operate businesses. When we hire experts and vendors of any kind, we are subject to 93A liability just like any other business.”
The underlying dispute involved an attorney who immediately stopped payment on a check sent to an expert witness after aggressive cross-examination at trial revealed previously undisclosed details about the doctor’s credentials.
“As a matter of practice, stopping a check that has already been sent is not an ideal way to address a contractual disagreement,” Rossi noted. “In some sense, it’s refusing to honor a financial commitment that you’ve already made. But that’s not to say that, in circumstances like this, the attorney may have some legitimate grievances about what was represented to him by the expert.”
Rossi advised that attorneys must carefully balance their ethical obligations under the Rules of Professional Conduct to be diligent and competent.
“That absolutely includes anticipating that opposing counsel is going to probe an expert’s credentials aggressively,” he said. “So, if we put someone on the stand, we have an obligation to vet that.”
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