EtHiCS CorNEr
Ethical issues and Forensic Consulting:
Multiple relationships – Questions in
Search of definitive Answers
Robert A. Simon, PhD
F
orensic consultation is distinct from the direct provision of fo- for multiple relationships (roles) so long as they are not reasonably ex-
rensic assessment services. Consultation services are provided pected to cause impairment or risk exploitation or harm.
to and/or through attorneys rather than to litigants or indi- The purely strategic consultant is not going to testify, and therefore
viduals with legal involvement. Forensic consultation makes an impor- everything he or she does is protected by the attorney/client privilege
tant contribution to the checks and balances that help to assure that and is not subject to discovery. However, if he or she moves into the
the impact of forensic assessment, and adjudication based upon such expert witness role, that is, addresses the Court through testimony or
assessment, is as accurate and helpful as possible. Psychologists who a written report, all the preceding communications with the retaining
offer forensic consulting services are typically asked to give an opinion attorney are available to the other side. If a review consultant engages
about how good or poor a job another forensic psychologist did and/ in discussions with the retaining attorney that have to do with case
or to help the attorney develop a strategy for winning the case. Can strategy, having the contents of these discussions revealed may cha-
one consultant provide both of these services or do our ethics suggest grin the retaining attorney and his or her client, the litigant. It could
that one role only is proper? To what extent does the issue of multiple adversely impact the expert’s credibility as a witness. Does this con-
relationships, as defined in the ethics code, inform this? stitute harm and to whom? Would the psychologist’s ethical duty to
The issue of multiple relationships is well-known to psychologists avoid multiple relationships that could result in harm be fulfilled if
and is prominently featured in the ethics code (American Psychology the psychologist clearly and overtly disclosed to the retaining attorney
Code, 2010). Standard 3.05 defines multiple relationships and ad- the potential harm that could be done, allowing the attorney to decide
vises, in part, that “multiple relationships that would not reasonably whether to take on this risk? Or, is this unethical for the psychologist
be expected to cause impairment or risk exploitation or harm are not in view of the psychologist having reasonable ability to forsee harm.
unethical.” The answers to such questions lack consensus. Until then, it is up
The review consultant’s job is to inspect the forensic report and the to each practitioner to develop and deploy rules of engagement that
underlying record of the forensic evaluator for thoroughness, adher- are felt to be ethically consistent. The conservative practitioner will
ence to standards of practice and ethical codes, and signs of bias and proceed by keeping a clear distinction between the two roles and will
to offer an opinion with regards to the validity and helpfulness of the refuse to participate in any given case in more than one capacity. The
work product. The review consultant’s job is to accurately and fairly less conservative practitioner, will consider the role distinction on a
detail both the strengths and weaknesses of the work product and to so case-by-case basis, hopefully in consultation with colleagues. This is a
advise the retaining attorney. If asked, the review consultant will offer brave new world so let’s keep the conversation open and vibrant.
testimony as to whether the work product is of sufficient quality that
References
the judge should be guided by it. When testifying, the review consul- American Psychological Association. (2010). Ethical principles of psychol-
tant’s job is to educate the Court. Expert witnesses do not advocate ogists and code of conduct.
for a litigation position. The testimonial expert’s duty is to be honest, Gould, J. W. & Martindale, D. A. (2008). The art and science of child custody
fair, and balanced and to tell the truth even if doing so may harm the evaluations. New York: The Guilford Press.
retaining attorney’s case. The strategic/litigation support consultant’s Lee, S. M. & Nachlis, L. S. (2011). Consulting with attorneys: An alter-
work is distinct in that it is not anticipated that this consultant will native hybrid model. Journal of Child Custody: Research, Issues and Practices
testify. This consultant’s job is to assist the retaining attorney as part 8(1-2), pp. 84-102.
of the litigation team. Zervopoulos, J. A. (2008). Confronting mental health evidence: A practical
Do ethics demand that these roles be mutually exclusive? It has guide to reliability of experts in family law. Chicago, IL; American Bar Association.
been argued that the case for a dual role distinction is unclear and that,
in some situations, it may ethical and desirable for a consultant to play Robert A. Simon, PhD, is a forensic psychology consultant, based in
more than one role in a case (Lee & Nachlis, 2011). Others argue for Del Mar, CA. Dr. Simon’s practice focuses on family law issues and child
custody disputes. Dr. Simon, who consults on cases throughout Califor-
the separation of these roles (Gould & Martindale, 2008; Zervopou-
nia, is currently finishing a book on forensic consulting and expert wit-
los, 2008). While review and strategic consulting may comprise differ- ness testimony.
ent roles and duties, the most recent revision of the ethics code allows
May/June 2012 • The California Psychologist 29
Ethical issues and Forensic Consulting:
Multiple relationships – Questions in
Search of definitive Answers
Robert A. Simon, PhD
F
orensic consultation is distinct from the direct provision of fo- for multiple relationships (roles) so long as they are not reasonably ex-
rensic assessment services. Consultation services are provided pected to cause impairment or risk exploitation or harm.
to and/or through attorneys rather than to litigants or indi- The purely strategic consultant is not going to testify, and therefore
viduals with legal involvement. Forensic consultation makes an impor- everything he or she does is protected by the attorney/client privilege
tant contribution to the checks and balances that help to assure that and is not subject to discovery. However, if he or she moves into the
the impact of forensic assessment, and adjudication based upon such expert witness role, that is, addresses the Court through testimony or
assessment, is as accurate and helpful as possible. Psychologists who a written report, all the preceding communications with the retaining
offer forensic consulting services are typically asked to give an opinion attorney are available to the other side. If a review consultant engages
about how good or poor a job another forensic psychologist did and/ in discussions with the retaining attorney that have to do with case
or to help the attorney develop a strategy for winning the case. Can strategy, having the contents of these discussions revealed may cha-
one consultant provide both of these services or do our ethics suggest grin the retaining attorney and his or her client, the litigant. It could
that one role only is proper? To what extent does the issue of multiple adversely impact the expert’s credibility as a witness. Does this con-
relationships, as defined in the ethics code, inform this? stitute harm and to whom? Would the psychologist’s ethical duty to
The issue of multiple relationships is well-known to psychologists avoid multiple relationships that could result in harm be fulfilled if
and is prominently featured in the ethics code (American Psychology the psychologist clearly and overtly disclosed to the retaining attorney
Code, 2010). Standard 3.05 defines multiple relationships and ad- the potential harm that could be done, allowing the attorney to decide
vises, in part, that “multiple relationships that would not reasonably whether to take on this risk? Or, is this unethical for the psychologist
be expected to cause impairment or risk exploitation or harm are not in view of the psychologist having reasonable ability to forsee harm.
unethical.” The answers to such questions lack consensus. Until then, it is up
The review consultant’s job is to inspect the forensic report and the to each practitioner to develop and deploy rules of engagement that
underlying record of the forensic evaluator for thoroughness, adher- are felt to be ethically consistent. The conservative practitioner will
ence to standards of practice and ethical codes, and signs of bias and proceed by keeping a clear distinction between the two roles and will
to offer an opinion with regards to the validity and helpfulness of the refuse to participate in any given case in more than one capacity. The
work product. The review consultant’s job is to accurately and fairly less conservative practitioner, will consider the role distinction on a
detail both the strengths and weaknesses of the work product and to so case-by-case basis, hopefully in consultation with colleagues. This is a
advise the retaining attorney. If asked, the review consultant will offer brave new world so let’s keep the conversation open and vibrant.
testimony as to whether the work product is of sufficient quality that
References
the judge should be guided by it. When testifying, the review consul- American Psychological Association. (2010). Ethical principles of psychol-
tant’s job is to educate the Court. Expert witnesses do not advocate ogists and code of conduct.
for a litigation position. The testimonial expert’s duty is to be honest, Gould, J. W. & Martindale, D. A. (2008). The art and science of child custody
fair, and balanced and to tell the truth even if doing so may harm the evaluations. New York: The Guilford Press.
retaining attorney’s case. The strategic/litigation support consultant’s Lee, S. M. & Nachlis, L. S. (2011). Consulting with attorneys: An alter-
work is distinct in that it is not anticipated that this consultant will native hybrid model. Journal of Child Custody: Research, Issues and Practices
testify. This consultant’s job is to assist the retaining attorney as part 8(1-2), pp. 84-102.
of the litigation team. Zervopoulos, J. A. (2008). Confronting mental health evidence: A practical
Do ethics demand that these roles be mutually exclusive? It has guide to reliability of experts in family law. Chicago, IL; American Bar Association.
been argued that the case for a dual role distinction is unclear and that,
in some situations, it may ethical and desirable for a consultant to play Robert A. Simon, PhD, is a forensic psychology consultant, based in
more than one role in a case (Lee & Nachlis, 2011). Others argue for Del Mar, CA. Dr. Simon’s practice focuses on family law issues and child
custody disputes. Dr. Simon, who consults on cases throughout Califor-
the separation of these roles (Gould & Martindale, 2008; Zervopou-
nia, is currently finishing a book on forensic consulting and expert wit-
los, 2008). While review and strategic consulting may comprise differ- ness testimony.
ent roles and duties, the most recent revision of the ethics code allows
May/June 2012 • The California Psychologist 29
