Is It Ever Okay Not to Disclose Work for Hire?

Abstract

In the paradigm instance, the disclosure question is straightforward. The linguist prepares an expert report on some forensic linguistic issue – e.g., the degree of similarity between two names or the meaning of a word or expression – for someone who has some legal or material interest in the question. Some time later, the linguist repeats that opinion in a publication or other public forum. Is the linguist obliged to report the circumstances of her original engagement? For the vast majority of people, the answer is probably to say yes. Even if disclosure isn’t required by rules specific to the publication or conference itself, it’s consistent with canons of scholarly and journalistic ethics that have become particularly salient in recent times. Moreover, as a purely practical matter, failure to disclose a prior consultancy relationship, is apt to appear shifty or arrogant (i.e., in presuming that your professional reputation exempts you from any charge of improbity) as well as unprofessional. Moreover, the disclosure obligation gets more complicated as we move away from the paradigmatic case along any of many dimensions. For example, what if the work was performed pro bono rather than for pay? What if the original involvement was limited merely to giving oral advice to counsel? What if the point at issue in the case is one on which you had opined in earlier work? All of these issues as may have bearing on the efforts of professional organizations to formulate a disclosure policy.