THE AMERICAN ADMIRALTY BUREAU'S CODE OF PROFESSIONAL AND ETHICAL CONDUCT

HISTORY AND DEVELOPMENT OF THE CODE

    The  Code of Professional and Ethical Conduct of the American Admiralty Bureau was first proposed by the Chief Forensic Examiner Capt. Raymond F. Bollinger, Master Pilot USMM in 1987 shortly after the founding of the Bureau and almost immediately adopted by the Board of Directors. Bollinger was familiar with the code of ethics of several marine surveyor's organizations and was not satisfied that they were comprehensive enough for the Bureau's Examiners who would almost always be writing for court review and testifying subject to cross examination. Most of the Marine Surveyor codes of the day were simple affairs of at best one page, sometimes a single line "I will attest to nothing that I know to be untrue". With few exceptions most of the Forensic Examiners of the Bureau were licensed Merchant Marine Officers who were also veterans of the U.S. Coast Guard with investigative and inspection experience. They were recruited for high professional and ethical standards. In fact one of the first departures by the Bureau from the norm of the era was in recruitment. At the time the courts considered anyone an "expert"eligible for expert witness testimony whose knowledge of a particular subject "exceeded that of a layman". The American Admiralty Bureau decided before accepting its first case that anyone the Bureau put forward as an expert would have to "hold superior credentials and experience and be considered an expert by his or her professional peers".

 The mission statement of the American Admiralty Bureau had already been drafted and approved before the first case was accepted. Later that mission statement would appear near the front cover of every American Admiralty Bureau "GUIDE" and "COMMENTATOR", the most common publications other than reports for clients that the Bureau produced. The mission statement read:

"The mission of the American Admiralty Bureau is to serve the public interest and the needs of their clients by improving marine safety,through activities promoting the increase and diffusion of knowledge of the nautical arts and sciences, marine regulations, codes, standards, authoritative literature, and good marine practice.

 In furtherance of this mission the American Admiralty Bureau produces technical books, seminars, consultations, research, and expert witness services."

 The mission statement of the Bureau and the vision of its founders set the Bureau directly in opposition of much of the observable actuality in the admiralty courts of the day. The tendency at that time was for the advocate to articulate his theory of the case and to shop for an "expert" who would add credibility to it. Few admiralty lawyers were expert mariners. Lots of professional mariners with what appeared to be high powered resume's were readily available for a price. Probably the most valued skills in an expert witness in those days were argumentative. Could the "expert" present and defend the lawyer's theory of the case?

 1987 however was a time of culmination of evolutionary changes in the nautical arts and sciences. For more than twenty years the U.S. Coast Guard, and later the Occupational Safety and Health Administration (OSHA), had been evolving ever more extensive and comprehensive marine safety regulations. The nautical education system had expanded, occupational license examinations were becoming standardized and the sources for questions were published along with Coast Guard suggested reading lists for the examinations. A body of verifiable authoritative literature was emerging. The International Maritime Consultative Organization (IMCO) was publishing minimum international standards in ship operations, later this organization would become even more authoritative and the United Nations would drop the word "consultative" from its title. During the formation of the American Admiralty Bureau, now the IMO (International Maritime Organization) became a deliberative organization with representatives from all of the major maritime nations. After investigation and deliberation this organization now published standards more so than regulations. Many of these standards were directly tied into international maritime conventions and added technical details to the convention articles much like the Coast Guard's regulations added technical details to the related marine safety statutes that directed the Coast Guard to develop appropriate detailed regulations to help enforce the intention of the relevant statute. In the same way IMO standards in the era were often literally designed for the signature nations to the various conventions to enact into actual national regulations after they had enacted the provisions of the conventions into national law. The American National Standards Institute (ANSI) catalog of standards was already well established when the Bureau was founded making codes and standards easier to find and providing a system of standard citation.

 Unfortunately in the court system of the day technical issues were more often than not resolved by squabbling experts. If the advocate produced an "expert" with an unlimited Master's license and 10 years service aboard the relevant type of vessel, the opposing advocate would try to secure the services of an older expert with otherwise identical credentials. Often they would have diametrically opposed views of causation. These views really amounted to; (Plaintiff)"the ship owner's agents were the sole cause of the injury because of their negligence" and (Defense) "the plaintiff seaman was reckless and negligent and was solely responsible for his own injury".  While this was still the norm in court forensic science was already starting to publish about the "causation matrix" in accidents. The "causation matrix" school of investigation assumed that while accidents may have an immediate proximate cause there are almost always numerous contributing factors, some so important that if they weren't present the accident would not have happened because the "proximate cause" would have been prevented". The entire mission of the American Admiralty Bureau was to break up the status quo and provide causation analysis that started from a neutral stance. Bureau Examiners were to  apply good forensics, and identify all applicable safety statutes, regulations, codes, standards, authoritative literature and good marine practices that could be verified,and were relevant to the causation matrix.

 In short, American Admiralty Bureau Forensic Examiners had to get causation dead right and their analysis had to stand up to the tests of marine safety statutes, regulations, codes, standards, authoritative literature, standards of instruction, and verifiable good marine practice. Unlike the typical insurance defense experts at the time, Bureau Examiners couldn't stand on "the custom of the industry".  They were going to need a very comprehensive code of professional and ethical behavior that was specifically designed for use in a potential litigation context and in an emerging historical era of growth in the formal articulation and codification of maritime safety practices. After considering many potential model codes the Board of Directors settled on the CODE OF PROFESSIONAL AND ETHICAL CONDUCT OF THE NATIONAL FORENSIC CENTER (NFC)  as a basic model from which to evolve a unique code for the Examiners of the Bureau.. This code was so comprehensive that the Board was able to adopt it in its entirety and immediately adapt it to the training of the new Forensic Examiners. Early reports of the Bureau cited the NFC code as the basis for investigation, testing, and standards of reporting. As case participation of the Bureau increased this code had some specific admiralty related provisions added which started the evolution of the more maritime focused American Admiralty Bureau Code. However, like the National Forensic Center Code, the AAB code continued to address all aspects of the forensic application of maritime professional knowledge including standards of presentation. For ease of citation and a key to developmental history the American Admiralty Bureau Code of Professional and Ethical Conduct , uses the same alpha numeric  outline system as the NFC Code. The NFC Code and the AAB Code both contain elements of prior authoritative literature on scientific and forensic ethics presented in larger works lacking in design for precise citation. One generalist code that is considerably shorter than the NFC or AAB codes but is in easily citeable form is  AN ETHICAL CODE FOR FORENSIC SCIENCE  (Proposed for the Southern Association of  Forensic Scientists). Another codified code of forensic ethics is The Code of Ethics of the Northwest Association of Forensic Scientists.  We mention these other codes simply to support our position that the AAB Code incorporates widely known and accepted ethical principles and that the adherence to formally articulated codes of forensic ethics is common in a number of professions. The National Forensic Center as it existed in 1989 does not appear to be operating, though a number of organizations with similar sounding names are around, and if we are correct in that assumption the NFC is no longer able to enforce its code among its "members". The American Admiralty Bureau ceased litigation operations around 2008 and no longer fields "Forensic Examiners" subject to corporate discipline. However the AAB always encouraged all maritime expert witnesses to adhere to the code and encouraged lawyers to check the work of testifying experts against the code. The American Admiralty Information Services (AAIS), an informal academic group whose individual members have legal possession of some of the intellectual property of the AAB, republish the AAB Code as an aid to the officers of the Admiralty Courts of America in enforcing ethical practice among maritime experts appearing in maritime tribunals. We also offer it to such experts as a guide to help assure the reliability and acceptability of their work. Ultimately we look to the combined efforts of maritime professionals offering forensic services and the officers of the court in seeking the truth to guard the portals of maritime justice from "Junk Science" and freely offer the AAB code as a tool in that effort.

WE VIEW COPYRIGHT CONSIDERATIONS RELATIVE TO THE CODE AS DETRIMENTAL TO THE PURPOSE OF THE CODE AND PLACE THE CODE IN THE PUBLIC DOMAIN. WE ENCOURAGE EXPERTS TO ADHERE TO THE CODE, CITE THE CODE IN THE PREAMBLE OF THEIR REPORTS, FREELY PRINT AND PROVIDE FREE COPIES TO ANY PARTY AT INTEREST IN ANY DISPUTE WHERE THEY PROVIDE FORENSIC SERVICES.

WHO MAY CITE THE CODE TODAY:

 The American Admiralty Bureau had a formal training and enforcement program relative to the code but always invited all maritime testifying experts to study, adhere to, and cite the code. The Bureau also encouraged the admiralty bar to study the code and measure testifying expert's performance against it. In doing so the Bureau was following the lead of the National Forensic Center which stated in its earliest draft code that;

"Compliance with this code relies principally on voluntary acceptance by the individual expert. The membership of the National Forensic Center believes that it can best promote that acceptance by assuming a strong instructional posture on these ethical and social responsibilities."

While the Bureau strictly enforced the code among its own employee and contractor Forensic Examiners, the Code has never been submitted for copy right, and non Bureau compliance surveyors and other testifying maritime experts have been encouraged to follow it, and lawyers have been urged and even trained through Bureau programs to use the code in evaluating the work of experts. It was the view of the Bureau that expert testimony that adhered to the code was unimpeachable, and that deviations were often impeachable. More over before the evolution of the American Admiralty Bureau's specific code many reputable maritime experts not in the employ of the Bureau cited to, adhered to, and participated in the evolution of the comparable NFC Code. The code was never meant to be the exclusive property of the American Admiralty Bureau. Only the highly effective training, enforcement, and application counseling programs were unique to the Bureau.

 The code worked in tandem with the professional ethics of the nautical professions. For example all Merchant Marine Officers both deck and engineering are examined for their knowledge of relevant law and regulation applicable to the class of vessel they are licensed to service. Such officers are also bound to the duty to enforce such safety regulations aboard the vessels under their charge. For such an officer to take a position that a practice specifically prohibited by regulation was acceptable because it was a "custom of the industry"places that officer not only in violation of the American Admiralty Bureau  or NFC code of ethics but in violation of his sworn duty. Such a position is imminently impeachable. 

 Such officers are not lawyers and may not argue different ways that the plain language of a regulation might be interpreted. However in the event that differences arise between licensed officers and the ship owner or agents of the owner over the meaning of a regulation the licensed officer is directed to the U.S. Coast Guard's interpretation as expressed in the Marine Safety Manual or an applicable NAVIC ( Navigation and Vessel Inspection Circular). A licensed officer who argues for an interpretation of a regulation not in conformance with the Coast Guard's Marine Safety Manual or relevant numbered NAVIC interpretation in court testimony violates his sworn professional obligation. The code works in tandem with the professional ethics of the profession functioning in the forensic situation and helps the professional stay within acceptable forensic practices, avoiding going out on a limb as co advocate with the lawyer who hired him.

 The legal fiction of the court even today is that the expert witness clarifies technical facts and is a "friend of the court" regardless of which side of a dispute hires him.  In the past the Bureau, and today the AAIS, sponsor of the American Admiralty Books blog, continue to urge the courts to directly hire experts as needed to advise the court and assess costs to both sides of the dispute. The expert is most reliable when working directly for the court. Both sides should be free to hire experts to advise them and even submit reports to the court's experts, but when it comes down to clarifying technical issues the court should be able to rely on its own experts and not hope that those of the adversaries have somehow over come the pressures to become co-advocates.

 Despite the fact that the Bureau was never able to get the courts to adopt this posture, the Bureau required clients to submit documents for review and commission a report complied in conformance with the code and to receive and review it prior to naming a Bureau Examiner as a testifying expert. Those who received unfavorable reports simply paid their initial invoice and never offered the Bureau expert for testimony, and retained the Bureau report as "protected attorney work product", a part of their research. The Bureau for its part would not examine two sides of the same case but rather whoever submitted documents first received the examination and report and the if the other side appeared they were turned away on the basis of conflict of interest and continuing protection of protected attorney work product. 

THE AUTHORITATIVE BASIS OF THE CODE

 In 1998 the NFC was considering various changes to the code including stronger advocacy for  direct hiring of experts by the court. Highly respected non- Bureau member , and well known expert Capt. Kirk Greiner published his views on the matter: EXPERTS RESPONSIBILITY 
This is a rare existing example of the actual deliberative process within the NFC in the evolution of the Code  and a proof that reputable maritime experts operating in forensic situations were adherents to the NFC Code. We believe basic precepts and principals reflected in the National Forensic Center Code are reflected in a number of codes that guide various professions in forensic activities. One example of  the incorporation of the NFC code into a larger set of Guidelines may be found in the GUIDELINES FOR FORENSIC ENGINEERING PRACTICE for the ASCE (American Society of Civil Engineers). The NFC CODE is described in SHIFFMAN's (2000) ETHICS IN FORENSIC SCIENCE AND MEDICINE .   Our Point is that the American Admiralty Bureau's Code of Professional and Ethical Conduct may be cited as a reliable guide to the proper execution of forensic science in a maritime context.  

 This status as an authoritative guide to forensic practice in the maritime context is not based on any status of the Bureau  in any way as a regulatory body for marine compliance surveyors, marine surveyors generally, navigation or engineering officers, or others performing forensic work related to maritime claims or litigation.  The reliability of the AAB code is based on its evolution from earlier usage of a widely accepted authoritative code recommended along with other sources in the forensic application of a variety of professional disciplines.  Maritime Expert witnesses need not have any affiliation with the American Admiralty Bureau to cite the code. Lawyers may examine any expert witnesses reports or testimony for compliance with the code. The underlying principals are found across a number of codes of forensic practice for a variety of professions. If any judge has issues with either the American Admiralty Bureau's Code of Ethical and Professional Forensic Practice or its root stock, the NFC Code, the advocate may simply cite to the most recent edition of  SHIFFMAN's ETHICS IN FORENSIC SCIENCE AND MEDICINE. The AAB Code is simply a more concise and focused organization of widely accepted principles of sound and ethical forensic practice that was accepted during the corporate life of the American Admiralty Bureau, LTD. in numerous litigated cases in State and Federal District Courts throughout the United States, most especially in the Federal 5th Circuit. The underlying basic concepts and principles work regardless of the source cited. We have not linked to the NFC Code in this post due to a 1989 Notice of Copy Right and our inability to locate a present day version on the internet. The AAB Code as presented contains enough of the more general forensic precepts and principals as found in the NFC Code and other forensic ethical writings to serve as a useful condensed guide in considering the forensic work of many non maritime experts. 

THE CODE OF PROFESSIONAL AND ETHICAL CONDUCT OF THE AMERICAN ADMIRALTY BUREAU

PREAMBLE:

 The first duty of the American Admiralty Bureau Forensic Examiner, and indeed that of any maritime professional working in a forensic endeavor should be to the truth; be that truth factual, historical, technical, regulatory, legal, or scientific.  The American Admiralty Bureau Forensic Examiner must be dedicated to the truth and never act as co-advocate for a legal cause of action. 

The American Admiralty Bureau Forensic Examiner may act as a vigorous advocate of his own investigative and analytic findings that he or she has arrived at in compliance with all aspects of this code and due professional diligence. The goal of this code is to assist the maritime professional acting in a forensic assignment in achieving the highest quality of professional and personal conduct as experts, in a manner that addresses these concerns and recognizes the expert's responsibility to society and justice. 

 As stated in the Code of Professional and Ethical Conduct of the National Forensic Center, here in after referred to as "the NFC Code":

  "A hall mark of all professionals is the recognition and acceptance of the social responsibility they have to promote high moral and ethical standards. More than ability or expertise , it is the individual's ethical and moral commitment to the community in the performance of his craft that is the principal quality of a true "professional" or "expert". 

 The American Admiralty Bureau's Code focuses on the activities of the experts that comprise this social responsibility and the principles that govern them. . 

 The code consists of two sections. Section 1 outlines the basic PRINCIPLES that provide a framework of responsibilities for the maritime forensic expert. Section II sets forth certain PRECEPTS, or standards of performance, in meeting those responsibilities. The enforcement of this code is formal within the Bureau as applied to Bureau employees and contractors including review of performance in compliance with the code by Bureau corporate counsel. Enforcement for maritime experts who cite the code in their work but are not employees or contractors of the Bureau is through impeachment by opposing trial counsel. The basic standards described in this code are not unique to this code but are found in many authoritative sources that many lawyers are familiar with. To deviate from the standards detailed in this Code or any of the sources from which it is derived  is to invite impeachment during the deposition or trial processes.  Impeachment will generally result in the refusal of the court to consider the work product of the expert damaging the hiring counsel's client interests and seriously damaging the professional reputation of the expert. 

 These Principles and Precepts are intended as a guide and a philosophy of behavior, rather than immutable, all inclusive laws. Although each dispute case and situation may vary and no set of guides will fit every circumstance, the fundamentals underlying these Principles and Precepts are always applicable.

Compliance with this code is a condition of employment or engagement for American Admiralty Bureau Examiners, both employees and contractors. For all other maritime experts it is simply a convenient restatement of specific principles and precepts of forensic practice. However to note that compliance with this specific code is voluntary is not to say that those who do not follow the underlying principals and precepts may nor be subject impeachment during deposition or at trial. Any attorney who finds any portion of this code useful, but is reluctant to cite to it for any reason, may find the same principals within the NATIONAL FORENSIC CENTER CODE or within the pages of the latest edition of SHIFFMAN'S ETHICS IN FORENSIC SCIENCE AND MEDICINE, or other professional codes of  ethics that address forensic applications such as the American Society of Civil Engineer's GUIDELINES FOR FORENSIC ENGINEERING PRACTICE. The American Admiralty Bureau's Code of Professional and Ethical Conduct

is simply a restatement of well established forensic ethical principals for use in a context of maritime litigation.

The American Admiralty Bureau, Ltd. recognizes the importance of the expert's role in the process of justice. We also recognize that rules and controls over the conduct of individuals assuming that role are necessary and inevitable. Unethical behavior by any expert has a direct, negative impact on the reputation and effectiveness of other experts. The issue is not the inevitability of control, the issue is whether that control is legislated, judicially mandated, or voluntarily  regulated through the efforts of the expert community. While the American Admiralty Bureau strictly teaches, and enforces this code among our forensic examiners we recognize that the only controls at present observable in the courts of America are voluntary on the part of experts, unless they face skilled cross examination by attorneys well versed in forensic ethics. As more attorneys and judges become familiar with the nearly universal principals represented in this code the impeachment of those who take forensic short cuts will gradually bring about a situation where adherence to good forensic ethics is virtually judicially mandated. It is only at that point that "junk science" will disappear from the admiralty courtroom.

                                                          DEFINITIONS

A brief explanation of terminology used in this code may be helpful

The term "Adherent" is used to represent not only American Admiralty Bureau Examiners and experts who are required to adhere to this code  but also all experts who offer their services in dispute resolution matters and adhere to and / or cite this code.

"Dispute Resolution"  is a broad term encompassing all forums in which the assistance of expert knowledge may be requested in resolving issues of a dispute.

The "Trier-of-Fact" represents those that will sit in judgement over issues. Traditionally juries and judges are triers-of-fact . Arbitrators and mediators would also fall under this term.

The terms "Professional", "Expert", and "Forensic Expert" and "Expert Witness" are used interchangeably to describe those who possess special skill, training and knowledge in a vocation or occupation , and offer that skill or knowledge in dispute resolution matters. Forensic deals with the analysis of testimony and evidence of past events involving anything suitable for courts of justice or other public forums.

Forensic ethics are not static and must constantly adapt to deal with new analytic technologies and changes in the technologies used in commerce. Codes change over time. This code embodies broadly applicable basic principals that we expect will stand the test of time, but over time we expect that this code will not be inclusive enough for all circumstances and technologies that will evolve in the future. This code is meant to work in tandem with the specific ethics of the particular expert's profession. For example a Merchant Marine Officer licensed by the U.S. Coast Guard is sworn to uphold the safety regulations of the Coast Guard. To argue that a particular "custom of the industry" in direct violation of such regulations, is safe is most often an "impeachable statement", while to maintain that a particular custom of the industry meets and exceeds the requirements of the regulation, though not specifically described within the regulation, is merely arguable. Experts serving in dispute resolution should always be mindful of both forensic and their individual professional ethics, or sworn duties.

SECTION 1-PRINCIPLES

ARTICLE 1. RESPONSIBILITIES

 Forensic Experts should always be mindful of their dual responsibilities. Not only are they responsible for the judgments and ethics of their professional activities , but also for the effect that those activities have on the process of justice. Forensic experts should accept justice as a foremost responsibility. In offering their services in dispute resolution matters, adherents perform an essential and independent role in the process of of social justice. the expert's purpose in this process is to provide clarity and knowledge on issues which will assist the trier-of-fact in reaching fair decisions. This is a very powerful and independent role that demands special responsibility. At the center of this responsibility is truth and justice, which entails upholding the public trust through integrity , objectivity, independence and competent work and conclusions.

ARTICLE II. THE PUBLIC TRUST

Experts must perform forensic services in a manner that will serve the public interest. Expert's professional activities and their activities as forensic experts, must honor the public trust at all times.

Services performed in a technically competent manner cannot be considered "professional" or "expert" unless a high standard of ethical and moral commitment to the community is at their foundation. When these services are in support of the judicial process additional social responsibilities are included, often ethical dilemmas are faced.

The advocate role of the attorney , the vested interests of clients and other pressures from a process outside the expert's control all contribute to these dilemmas. To overcome the ethical dilemmas that this process can cause, experts must believe and act on the independent role of the expert to serve the public interest. 

All who accept these principals of forensic expert ethical conduct in dispute resolution services, have assumed a responsibility to honor public trust. In return for the faith the public reposes in them as experts , adherents to this code must seek continually to demonstrate a dedication to moral and professional excellence and integrity.

ARTICLE III - INTEGRITY

Adherents to this code must perform all aspects of their professional responsibilities as experts , including the dissemination of findings and conclusions, with the highest degree of integrity.

 Integrity is the backbone of social existence.  It governs both the substance and the form of one's behavior, and is the quality from which public trust is derived. The definition of integrity includes,"The quality or state of being complete....being of sound moral principal, uprightness, honesty, and sincerity." "For the forensic expert, being complete is directing those attributes to the requirements of a profession, a client, to herself or himself , and above all, to truth and justice." (From the NFC Code)  Maintaining integrity demands a constant weighing of these four requirements against a proper perspective of the four requirements with truth and justice always paramount.

The forensic expert often works in an environment in which adversarial and advocatorial  pressures exist, and where there is an absence or perceived virtual absence of specific rules , standards, or guidance.  To meet these challenges, the expert must frequently call on integrity and conscience. Integrity, for the forensic expert, is a very personal and sacred and sacred trust and the benchmark against which an adherent to this code must ultimately test all decisions. Integrity is not perfection. Integrity is a state of mind. As such it can tolerate an occasional error and the honest difference of opinion but it can not tolerate deceit or subordination of judgement or principles. The expert in possession of integrity is able to describe his level of conviction on any single finding from "the only logical conclusion", a mathematical certainty, to more probably than not, or based on the available evidence to date. The expert in possession of integrity isn't afraid to label a report verbal or written as a "report or description of first impression" when it is appropriate to do so.

ARTICLE IV- OBJECTIVITY AND INDEPENDENCE

Adherents to this code should maintain objectivity in all professional dealings. Members should be free from conflicts of interest and possess an independence that will not jeopardize their objectivity. This objectivity and independence should be in fact as well as appearance, and should cover both the work product and the dispute resolution forum in which this work product is being used.

Objectivity is a state of mind and a quality that distinguishes the work of a true professional. Objectivity requires an adherent to this code to be impartial, intellectually honest and free of conflicts of interest.

Because of the unique role an expert plays in the process of justice, the appearance of independence cannot always be easily maintained. When members are retained as experts by clients and attorneys with a vested or advocatorial interest in the outcome, that client relationship often challenges the independence  and objectivity so vital in the expert's role. The forensic expert is there to assist the trier-of-fact in evaluating and understanding the factual issues involved. Unlike the attorney the expert is not an advocate for a client. The expert is an advocate for his or her knowledge.

Objectivity necessitates that adherents to this code consider client commitments carefully. Both the expert and the potential client should weigh the relationship and ascertain if the client's needs and desires are compatible with the probable factual opinions of the expert.

When members are retained as consultants and not experts in a matter , the need for objectivity  or independence still exists. As an advocate for the client an attorney may consult with experts to bolster his or her case. In this context,  the consultant may appear to be part of the advocacy team, and not objective. Ultimately , however, objectivity is a quality that rests rests with the individual and not with the engagement. When acting as consultants, members should be scrupulous in the application of their expertise and candid in their dealings and opinions. Defining the factual elements in a dispute, including the relative strengths and weaknesses of issues is valid and valuable consultation by an expert. Assisting subversion of justice is not.

Adherents to this code should adhere to fee arrangements that promote the appearance of independence and objectivity.

Objectivity and independence are never static. They are qualities that evolve with the constant assessment of client needs and public responsibility.

ARTICLE V -PROFESSIONAL CARE AND COMPETENCE ;

A  adherent to this code should observe the technical and ethical standards of his or her profession, whether written or implied. They should continually strive to improve the competence and quality of expertise and discharge that expertise to the best of their ability, consistent with justice.

Nowhere is the requirement for professional care greater than that imposed on the expert in dispute resolution issues. The quality and accuracy of a forensic expert's work-product is not only a client issue, it is also a public issue.

A forensic expert assumes the added role of a teacher. Members are required to maintain competence in both their expertise and in an ability to clearly and accurately disseminate that expertise to others.

Competence represents the attainment and maintenance of a level of knowledge and understanding that enables a member to render services with quality , acumen, and clarity. The maintenance of competence requires a commitment to learning and to improvement throughout a member's professional life.  This commitment to learning must be to both the expertise, and the process of justice in which the expertise is applied.  Regardless of the level of proficiency and continuing education required by the individual's profession or trade, social responsibility as an expert , demands the highest possible level of knowledge and ability.

Competence is not only the recognition of one's knowledge, it is also the recognition and affirmation of the limitations and range of that knowledge. This is of particular importance to the forensic expert.

ARTICLE VI- SCOPE AND NATURE OF SERVICES

An adherent to this code should only perform services as an expert in matters in which he or she would be considered "expert" by professional peers. In addition, a member should only offer services as an expert after consideration has been given to the principles outlined previously.

All too frequently, the legal community has allowed "Expert" designation to individuals with limited credentials. It has been said that a legal definition of an expert is an individual who posses more knowledge on a subject than the average person.  This permissiveness is in part responsible for many of the abuses found in expert testimony and is not acceptable under the spirit of this code. The definition of an expert as a "person  who is very skillful or highly trained and informed in some special field" more accurately defines the qualifications of an expert as intended in this Code, to this we add that a true expert should be considered as such by his or her professional peers. Evidence of such peer regard may include, but not be limited to, publication in professional journals and teaching activity.

Adherents must weigh the propriety of offering their services as an expert after assessing the individual circumstances in a framework of the principles outlined in these Articles.  No hard and fast rules can be given to assist in these judgments. Adherents have a moral and social obligation to decline services performed strictly in the name of advocacy, that do not support an honest interpretation of the facts or that subvert  truth and justice in any way. It is the spirit of these Principles that must guide the member's decision.

Because justice rests in the public domain, the background, qualifications and past professional record of the forensic expert should be kept current and made available upon request.

                                                  SECTION II-PRECEPTS

APPLICABILITY AND ENFORCEMENT

 These precepts are intended to provide direction and standards of conduct for experts.  They are definitive guides based on the principles that preceded them. Although not intended to be immutable rules, adherents should be well prepared to justify departures from these precepts. Although adherence to these precepts is ultimately on an individual , voluntary basis, various means of enforcement exist including peer pressure, judicial review and rejection of testimony and reports judged not in accordance with recognized forensic principals and practices, challenges by opposing counsel, and the negative impacts rejection of testimony or reports can have on an expert's professional reputation. Even attorneys and judges who have never read this particular code may be familiar with similar provisions in broader works and references on science and ethics.

A. PERSONAL STANDARDS:

     1. Independence : 

         An expert shall be independent in fact and appearance and be free of any conflict of interest that could prejudice the objectivity of his or her conclusions.  When retained as a consultant, a member will consult in a manner that does not compromise this quality of independence.

     2. Integrity:  

         An adherent to this code will not knowingly misrepresent facts and / or data upon which an expert opinion or conclusion is based. Nor will a member misrepresent facts pertaining to education, training, experience, or area or degree of expertise.   Misrepresentation can take an active form or may also be passive through withholding or omitting data and information. An adherent must never subordinate his or her professional judgement to the wishes of others.

     3.  Objectivity: 

         The essential purpose of a forensic expert is to provide instruction and clarification of issues in the process of justice. a members involvement in disputes, including work product and opinions, should have actual objectivity as well as the appearance of objectivity. Conclusions should be based on facts and reasonable assumptions that are honestly and objectively represented.

B. PROFESSIONAL AND TECHNICAL STANDARDS

     1. Professional Competence; 

  An adherent to this code shall only accept those engagements that he or she can perform with technical competence, and which are of a type that the member would routinely perform in the course of normal professional duties. An adherent should not purport to be an expert in matters in which he has limited knowledge or experience, or in any matter in which peers in the same profession, with the same level of knowledge and experience , would hold themselves out as experts.

    2. Due Professional Care: 

  All conclusions and opinions will be based on work that was performed with due professional care. all work nor personally prepared by an adherent will have been adequately planned, supervised, and reviewed by the adherent.

    3. Adequate Data:

 An adherent to this code shall consider all relevant data, weigh that data, and analyze it objectively in formulating conclusions and opinions. Conclusions of fact will not be drawn from data or materials which appear unrepresentative, atypical, or unreliable.

    4. Methodology:

All tests, and other operations leading to conclusions shall be based on adequate and accepted procedures in that profession, verifiable by re-testing or analysis by other professionals. No discredited or unreliable procedure will be used and procedures that are in any way experimental, controversial, or not embraced by that professional community, will be clearly defined as such in the work product and conclusions. The methodology used , and all steps taken in reaching a conclusion, will be clearly set forth and made available upon request.

    5. Professional Criteria: 

Where conclusions and opinions are based on other than specific facts, the conclusions and opinions will clearly state all other criteria used.  Conclusions and opinions based on hypothetical data, forecast , estimates, assumptions, or other non-factual elements will clearly reflect their qualified nature, Each of these elements, both factual and non-factual, will be clearly identified as such , and not confused.

   6. Continuing Education and Training:

An adherent to this code shall keep technically current in his or her profession.  Particular emphasis should be placed on keeping current in the member's specialized areas of expertise. A member shall be prepared to report all continuing education and training they have received and what formal requirements for continuing education , if any, exist in the profession or trade they practice.



C. GENERAL PRACTICE STANDARDS:

1. Promotion and Solicitation: 

     An Adherent to this code shall not promote his or her business or services through advertising or other forms of solicitation that are false, misleading, deceptive, or unprofessional.

2. Background and Qualifications: 

     A forensic expert must maintain a current vitae that gives all pertinent information pertaining to his or her qualifications as an expert.  This data shall be factual and not misleading in substance or in spirit.

     Because of the added responsibility assumed by the forensic expert to justice and the public trust, adherents to this code shall also maintain a factual current summary of all dispute matters in which expert testimony, opinions, and / or services have been rendered. Without compromising client confidentiality, this summary will contain enough information to identify cases that are a matter of public record, the number of matters identified, as to type of dispute, the nature of the services performed, and whether retained by the plaintiff, the defendant, or both parties.

3. Fee Structure:

    One of the most serious and controversial issues facing experts is the propriety of contingency fees.

    Because of the important issues of independence and objectivity, contingency fees for forensic experts have generally been prohibited. The counter argument in favor of contingency fees is the enhanced availability of expert services to all parties, including the indigent. As of the present, members shall not render services on a contingency fee basis unless authorized and approved in advance by a court of law, or other forum exercising control over the disputed matter. In no case shall a contingency fee or other arrangement be entered into that impairs independence or objectivity. All forms of fee arrangements should be fully disclosed if requested.

4. Professional Cooperation:

     Where differences of opinion on issues exist between experts for opposing sides, some differences may be resolved through cooperative effort between parties and experts. In the interest of justice adherents to this code should recommend this approach whenever possible. Adherents should use caution that these recommendations are through proper channels and do not impinge upon the function of the attorneys, or breach any confidentialities.

5. Attorney-Expert Relationships:

    The role of the attorney is inherently different than that of the expert. The advocacy of an attorney is for the client. The advocacy of an expert is for knowledge to assist in the process of justice. When the two are not compatible the expert has to take necessary steps to not compromise the client, the process of justice, or the experts professional integrity.

     The expert may act as a consultant to an attorney. This service must be performed in good  faith and not maliciously. Its purpose is to educate the attorney and prevent incompetent testimony, not thwart justice. When acting as a consultant the member must be prepared to disclose the exact consulting role he or she played, if required to do so. In litigation matters the expert will understand and comply with all legal requirements and confidentialities that may apply in the role of consultant.

6. Personal Publicity

     In the interest of professionalism and public trust, an adherent to this code  should refrain from seeking publicity on specific cases. This does not preclude recognition through publications and other appropriate professional means. An adherent shall discourage the association of his or her name with developments, publications, or organizations in which they have played no significant part, merely as a means of gaining personal publicity or prestige.


D. STANDARDS OF PRESENTATION: 

      1. Expert versus Personal Opinion:

           An adherent's expert opinion is that opinion derived from a formal consideration of a subject within the expert's knowledge and experience. Personal opinion consists of one's thoughts or beliefs on matters unsupported by formal consideration. A member shall not take advantage of the privilege to express opinions on matters either within or outside his or her field of expertise to which formal consideration has not been given.

            The expert must always be mindful of the parameters of his or her role. An adherent shall use caution by not volunteering information outside of the issues and expertise for which the expert was retained. Conversely a member shall not overtly or covertly withhold information.

   
    2. Degrees of Certainty: 

          In most matters there are varying degrees of certainty represented under the single term of "expert opinion".  An adherent to this code will not take advantage of his or her position as an expert by assigning or implying greater significance to an interpretation than it warrants. The degree of certainty of an opinion is as important as the opinion itself and an adherent shall do nothing actively or passively to misstate the degree of certainty.


    3. Contents of Written Conclusions and Opinions

         A formal written report shall be complete and self contained, in that it shall provide all pertinent data and procedures utilized and relied upon to reach the conclusions and opinions given.



     4. Informal Reports and Opinions:

         In the case of oral testimony or opinions and conclusions not supported by formal reports, an adherent to this code  shall present that testimony in a manner that does not confuse the issues or mislead any of the parties who have a vested interest in that knowledge. If requested of an adherent, he or she should be prepared to provide all of the steps, data, and criteria necessary to support the conclusions being given.


     5. Qualified and Diverse Opinion:

        The forensic expert has a moral obligation to see that the trier-of-fact understands the issues as they exist, and to present the issues in an impartial manner that allows the proper weight and perspective  to be given to them.  Where an opinion requires qualification or explanation , it is not only proper , but incumbent upon the expert to offer qualification. An adherent to this code shall not state or infer that diverse opinions should not be considered, unless they have strong professional grounds to support that belief.

     6. Form and Impartiality of Presentation:

          The expert is a teacher and a clarifier of issues. A member's opinions and conclusions , whether in the form of oral testimony or a written report, shall be clear, concise, and avoid ambiguity. An adherent to this code shall make every effort to use simple understandable language in his or her opinions and explanations to insure that the trier-of-fact will obtain a valid and clear concept of the issues. The use of vague, misleading, circuitous, or ambiguous language, with a view of confusing an issue, or prejudicing the thought process is unethical. Adherents will present the opinions and conclusions with absolute impartiality. 


    7.  Representation:

          Work product, conclusions and opinions will clearly reflect any portion that was provided by someone other than the reporting or testifying expert. Representations in the expert's conclusions, and in any work product supporting those conclusions, will be factual and not misleading.


     8. Verification of Conclusions:

          An expert's opinions should be verifiable by other experts from data supporting those opinions. Where technically possible the key elements supporting an expert's opinion, and methodology used, should be understandable by the trier-of-fact.


      9. Demonstrative Evidence:

           Any means of conveying opinions effectively should be considered by by the forensic expert. If  demonstrative evidence is used for this purpose, the evidence must not only be factual in content, but must also be in a form and format that does not consciously or subconsciously distort the findings and conclusions.


    10. Discovery Process: 

            An adherent to this code shall not knowingly impede the legal discovery process by providing false, inaccurate, inappropriate, or incomplete information.


    11. Divergent Opinions

          As stated in Precept (C-4), major differences of opinion can arise between opposing experts. Generally these differences are from interpretations of the facts.  all too often, however, these major differences are the result of one or more experts assuming the role of client advocate.

         In those situations where severe differences appear inevitable and the parties cannot agree to resolve them, the adherent to this code should recommend that  the issue or issues be brought before an arbitration panel of peer experts for resolution prior to trial. In litigation matters that recommendation is normally made through the attorney who engaged the expert. Care should be taken not to impinge upon the function of the attorney, but at the same time the expert should recognize the importance of the independent role the expert can play in resolving issues and exert his or her influence in this area.


E.   RESPONSIBILITIES TO PROFESSIONAL PEERS AND OTHER EXPERTS

       1. The Integrity of the Adherent of this Code:  

           The arenas of dispute resolution are often highly charged and emotional. The emotionally charged atmosphere makes divergent views between experts become adversarial matters in the minds of the principals and sometimes the advocates. Adherents to this code should not join in or encourage the adversarial discussions but rather be respectful of other experts and refrain from any comments or statements that are demeaning or personally critical. The respect that the larger community shows to experts can only be as great as the respect experts show to each other.

      2, The Forensic Professional's Responsibility:

          In those severe instances where a professional providing forensic services in a dispute resolution  feels that an expert has intentionally given a false or unjustified opinion, one that has discredited his or her profession and the process of justice, the adherent to this code should lodge the appropriate complaints. Generally these complaints should first be directed to first to the attorney who engaged the professional observing such misbehavior and then to the individual's professional governing organization if appropriate. Gross unethical behavior by expert witnesses in the dispute resolution arena should never be tolerated by professional peers.

     3. CITATION TO THIS CODE:  Voluntary adherents to this code may cite it as "THE CODE OF PROFESSIONAL AND ETHICAL CONDUCT OF THE AMERICAN ADMIRALTY BUREAU.LTD" and may refer to themselves as "Adherents" to the code and should cite the code in their reports noting that their investigations, tests, examinations of evidence, and formation and reporting of opinions and conclusions were conducted in conformance with the CODE OF PROFESSIONAL AND ETHICAL CONDUCT OF THE AMERICAN ADMIRALTY BUREAU, LTD. Adherents should copy this code and provide a copy to any attorney or party at interest upon request when serving in a dispute resolution. In citing to the code the adherent must be prepared to see his or her work judged by the code. In defending the selection and adherence to the code it should be noted that the code was the formal and enforced code of the professionals of the American Admiralty Bureau , Ltd  who were available for expert witness court service for approximately 20 years. Its origins are most closely associated the Code of the National Forensic Center published in 1989 of which the American Admiralty Bureau was a member, but reflect the unique maritime corporate experience of the American Admiralty Bureau. Both Codes reflect basic principles of scientific , investigative, and  forensic ethics that may be found in numerous authoritative literature sources  such as
SHIFFMAN's ETHICS IN FORENSIC SCIENCE AND MEDICINE , or the American Society of Civil Engineer's GUIDELINES FOR FORENSIC ENGINEERING PRACTICE