Arizona Water Resource Mar-Apr 2005

Home Browse Search

Witnesses AZ law restricts payment of contingency fees to witnesses The payment of contingency fees to expert witnesses in legal proceedings is a controversial topic, one that concerns those who testify in water - related proceedings. The Arizona Board of Techni- cal Registration is considering what policy, if any, to adopt if one of its registrants accepts a contingency fee when acting as an expert witness. BTR's mission is to protect the public by setting appropri- ate registration qualifications for those practicing board - regulated professions and occupations; the board also enforces state statutes affecting its registrants. Whatever policy the BTR adopts will apply only to those professions and occupations the board is set up to regulate: these include geologists, engineers and landscape archi- tects. (Hydrologists are not registered by BTR, although interest has been expressed at various times that the board regulate the profes- sion or occupation. Hydrology would seem to be an appropriate field for BTR to regulate since it has the potential to affect the safety, health and welfare of the public. Yet there seems not to have been sufficient interest to develop and support the necessary legisla- tion to direct the BTR to develop licensing rules, examinations and other necessary prerequisites to license hydrologists.) BTR's research of the contingency fee issue included a review of codes adopted by various professional societies. The board found that the codes are either silent on the issue or they include a qualification that such fees are unacceptable if they have the poten- tial to compromise professional judgement. In preparing to work out its policy, BTR requested that an as- sistant attorney general review Arizona state laws related to fees for legal matters; specifically whether contingency agreements with expert witnesses are permissible in Arizona. In response, the board was informed that state law considers any contract to pay a witness based on the outcome of litigation to be void and not enforceable. Further, under current BTR rules, the board does not have the expressed authority to discipline registrants entering into these agreements. In other words, although such contracts are void and unenforceable, members of BTR - regulated professions accepting contingency fees are not necessarily guilty of violating a Board rule or statute and thus subject to BTR discipline. The board is now in the process of deciding whether BTR rules should be modified to enable the board to discipline registrants who accept contingency fees. In addressing the issue, the BTR is not responding to any par- ticular complaint that a registrant had in fact taken a contingency fee, although concerns have been raised that the issue is becoming If BTR modifies its rules to discipline registrants taking a con- tingency fee while serving as an expert witness, it could take various courses of action, including a dismissal of the complaint. A range of other possible actions exists, from attaching a letter of concern to a person's record — this is considered a non - disciplinary action — to revoking a registrant's license. What is more likely, however, is that a consent agreement would be worked out between the board and the registrant, with the registrant agreeing to some kind of disciplinary action. This could include discontinuance, payment of a fine or the cost of the investi- gation or attendance at a course on ethics or on the board's rules. Whatever action the BTR takes, whether or not to discipline and what penalty to impose, applies only to professions it regulates. The law, however, applies to all professions and occupations. For example, a hydrologist testifying in a case and accepting a con- tingency fee is violating the law but would not be subject to BTR disciplinary action since the board does not regulate hydrologists. The contract with the hydrologist, however, would be considered void under the law: this could result in a setback in the courtroom. For example, an opposing lawyer could contest the testimony on the grounds that state law prohibits testimony from individuals ac- cepting a contingency fee; the lawyer could then argue that the testi- mony is not valid. BTR's Legislative Rules Committee is reviewing the issue and will make a recommendation for the board to act upon. Water Policy Dialogue Urges National Water Commission In February, Tucson hosted the American Water Resources As- sociation's Second National Water Resources Policy Dialogue, an event sponsored by nine federal agencies and 40 state, local, busi- ness and non - governmental organizations. Ideas generated by the dialogue are included in letters AWRA recently sent to President Bush, Speaker of the House Tom DeLay, Senate Majority Leader Bill Frist, key members of Congress and governors of the 50 states. The letters urge the formation of a bipartisan commission to examine critical water issues now facing the nation and to work out strategies for addressing the issues and resolving conflicts. The letters also mention the national challenges identified by participants in the Tucson dialogue. The challenges include the need for water issues to be addressed in an integrated manner; the need to reconcile the myriad laws, executive orders and Congres- sional guidance that have created a disjointed, ad -hoc national water policy; the better coordination of the actions of federal, state, tribal, and local governments in dealing with water; the need for scientific Continued on page 8