Consulting for a law firm constitutes an outside activity with not just the law firm, but also with the client of the law firm. Employees must divulge the client or the activity cannot be approved. In addition, an employee who is contacted in his/her private capacity as a health care provider to consult for a law firm must still obtain permission for the consulting activity; it cannot be treated as part of the outside health care practice.
Long term continuing consulting for a law firm is not permitted under NIH policy. Employees must seek and receive permission in advance for each case in which they would be involved, even if with the same law firm with whom they had a previous activity. The same conditions apply for expert testimony, which requires approval for testimony for each case. For clarification, the following explanations and definitions are provided:
Expert testimony is a short-hand term for "service as an expert witness," the terminology used in the Standards (5 CFR 2635.805). The term is broad enough to cover providing a written report (especially where that report, by rule or custom, will be shared with opposing counsel), appearing for a deposition, or otherwise providing information or testimony under oath, when the employee is not a fact witness.
Consulting with a law firm is a fairly preliminary activity, and should not involve written reports or opinions. Law firms often consult as they formulate their theory of a case, identify issues, etc. These consultations are typically verbal, although the physician or other professional may have reviewed paper records before having the discussion with the attorney.
Employees must obtain separate approval to serve as an expert witness, unless it was included in the original request. For example, an NIH scientist approved to consult with a firm (before a case is filed) to help the firm decide whether to file a case or claim, must seek separate approval later if s/he is asked to serve as an expert witness in the case. Employees need to be thorough in describing the extent of consultation and expected activities with law firms to avoid unapproved expert witness service. There are several typical situations when an HHS 520 package is required and may be approved following conflict review, based on the facts in each case:
The employee is invited to consult with a law firm (as distinguished from serving as an expert witness) in relation to a particular set of facts (e.g., a current or potential case). The consultation may be approved via the 520.
The employee is invited to serve as an expert witness in relation to a particular pending case or lawsuit (which includes consultative review of the particular case). If it is known that service as an expert witness is expected, clearly state that in the HHS 520 package. Both consultation and expert witness may be approved via the 520.
The employee was originally invited to consult on a particular set of facts and is subsequently asked to serve as an expert witness in relation to a lawsuit or case arising from those facts. The original consultation was approved. When the employee is asked to serve as an expert witness, the employee must submit another 520 for the expert witness.
Note: Approvals should always be limited to particular sets of facts or lawsuits/cases; law firm activities for which continuing approval have been granted in the past increase the potential that an employee may inadvertently consult or testify on a subject matter related to his/her official duty, or otherwise violate existing statute, regulation or policy.
Reminder: Only the HHS DAEO can approve service as an expert witness in relation to a case or proceeding pending or to be filed in Federal court or with any Federal agency. That request must receive approval by the supervisor and DEC prior to review/decision by the DAEO. Following DEC approval, a memo must be prepared for the HHS DAEO requesting approval.
For additional information, contact your IC's Ethics Officials (see links below).