Who's on First: When an Attorney's Former Client Serves as an Expert Witness
LACBA Update, November 2005
By Kenneth C. Feldman, member, LACBA Professional Responsibility and Ethics Committee. Feldman is a partner at Lewis Brisbois Bisgaard & Smith, LLP, where he co-chairs the Los Angeles office's professional liability department. He would like to thank Brian Slome, a law clerk with the firm and a 2005 graduate of Emory Law School, for his assistance with this article. The opinions expressed are his own.
On July 18, 2005, the Association's Professional Responsibility and Ethics Committee issued its advisory opinion regarding whether an attorney may represent a client when the adversary's expert is the attorney's former client. In Formal Opinion 513, the committee stated, "Whether the attorney can undertake or continue the new representation depends largely on the nature of the information the attorney may have received from the prior representation and whether that information is material to his or her employment in the new litigation such that confidential information from the former client might be used or disclosed in the course of the new representation." For a related issue regarding whether an expert can be disqualified for having done work for the client in an earlier matter, see Brand v. 20th Century/21st Century Insurance Company, (2004) 124 Cal.App.4th 594.
Opinion 513 was decided based on the following facts: A lawyer had represented a doctor in a medical board proceeding. Some 20 years later, the doctor had been designated an expert witness by the plaintiff's counsel in a case defended by the same lawyer. The doctor had failed to fully inform the plaintiff's counsel of his prior attorney-client relationship with the defense counsel. When the defense attorney revealed his former attorney-client relationship to the plaintiff's counsel, the plaintiff's counsel moved to disqualify the defense attorney.
These facts are similar to but present a harder question than the facts of Hernandez v. Paicius, (2003) 109 Cal.App.4th 452, which is a concurrent representation case. In Hernandez, a medical malpractice case, the defense counsel's firm (but not the defense counsel herself) represented the plaintiff's expert witness in a separate malpractice case at the same time as the trial in question. The court stated that "[t]he spectacle of an attorney skewering her own client on the witness stand in the interest of defending another client demeans the integrity of the legal profession and undermines confidence in the attorney-client relationship." Id. at 766. The court based its decision on the duty of loyalty as opposed to the duty of confidentiality. Significantly, the court stated that "[o]ur disposition of this issue should not be construed as suggesting that disqualification of counsel is the appropriate remedy in all cases in which one party's attorney represents an expert designated by the other side." Id. at 467. "A party's right to select counsel of his or her own choosing may trump the opposing party's freedom to choose an expert whose designation creates a conflict... [The court did not] formulate a rule of general application." Id.
The committee based its opinion as to the successor expert question on Business and Professions Code Sec. 6068(e)(1) and California Rules of Professional Conduct, Rule 3-310(E). Section 6068(e)(1) states, "It is the duty of an attorney to...maintain inviolate the confidence and at every peril to himself or herself to preserve the secrets of his or her client." Rule 3-310(E) goes further, preventing a lawyer from accepting a new client who is adverse to a former client without written and informed consent. "A member shall not without the informed consent of the client or former client accept employment adverse to the client or former client." Conversely, an argument could be fashioned that in this situation the lawyer's employment is not adverse to the former client (now the opposing expert) but to the opposing party. The adversity to the former client in this situation is indirect, and arguably direct adversity is required. See Morrison Knudsen Corp v. Hancock, Rothert Bunshoft, (1999) 69 Cal.App.4th 223, 240 (corporation and subsidiary at issue), which construes Rule 3-310(C); but see Hernandez, supra).
Accepting the premise of Opinion 513, the duty of confidentiality does not automatically disqualify an attorney from being involved in litigation where a former client is retained by an adverse party as an expert witness. Indeed, different considerations apply depending on whether the expert is retained before or after the attorney's involvement in the litigation.
There is one situation, however, in which it makes no difference when the lawyer is retained. This situation arises when the lawyer, through former representation of the expert, possesses no confidential information that would be material to the employment in the new matter. In such a case a lawyer may always continue representing the current client without violating any professional duty. In short, this is Chick Hearn's no-harm-no-foul rule. On a practical level, this determination requires a lawyer to establish not only whether the information possessed is confidential but also whether the information is material. This latter determination can be a difficult one.
Employment of attorney after former client has been designated an expert by opposing party. This is the less likely of the two scenarios as experts are typically designated just 50 days before trial. See Code of Civ. Proc., Sec. 2034.230. Accordingly, usually the attorney in question was retained long before the opposing expert's former client is identified. Of course, sometimes counsel are substituted out late in the litigation, and new trial counsel are associated in just before trial.
The committee concluded this first scenario an easy case governed by the plain meaning of Rule 3-310(E) and its proscription of using confidential information against a former client in an adverse proceeding. If the lawyer has obtained confidential information, and such information is material to the representation of the present client, the lawyer cannot accept the representation unless there is informed written consent from both the former and current clients.
Facing the prospect of losing a present client at the expense of a duty owed to a former client, a lawyer may be tempted to circumvent Rule 3-310 by limiting the scope of the new client's representation. This practice, however, has long been held offensive to a lawyer's professional duties. Indeed, the California courts have consistently held this practice violates a lawyer's duty to zealously represent current clients. In American Airlines v. Sheppard, Mullin, Richter & Hampton, (2002) 96 Cal.App.4th 1017, 1039, the court stated:
It is anathema to the Rules of Professional Conduct to suggest that an attorney can place himself in a situation in which he undertakes adverse representation of a third party, and the client cannot object because the attorney has promised not to disclose the client's confidential information even though the information may be decidedly helpful to the new client.
Former client is designated an expert witness by adverse party where former attorney is already of record in same matter. When the lawyer is involved in a matter prior to the former client being designated an expert, a more complicated analysis is required. Here, not only is the former lawyer not responsible for the conflict, but the present client's interests may be harmed if the lawyer is disqualified. Additionally, the former client may have been selected as a tactic to create a conflict and thereby disqualify the lawyer.
When a lawyer possesses confidential information about the other side's expert, a conflict is created between the lawyer's present and former clients. It is not clear whether Rule 3-310 applies in this case, however, because the rule provides that "a lawyer may not accept employment." Since the lawyer is not accepting employment but rather continuing an existing attorney-client relationship, it might be argued that the rule does not apply.
If consent is sought from the former client, having the expert on the opposing side of a case may make getting informed written consent impracticable. In such a situation, seeking judicial intervention may be appropriate. A lawyer may ethically ask a court to determine that the opposing expert, on agreeing to participate in the case, waived any attorney-client privilege. Alternatively, the court may be asked for a limited waiver of the attorney's confidentiality duties to the extent the attorney finds it necessary to represent the new client.
Finally, the attorney may ask the court to disqualify the expert. In so doing, the attorney may argue the prejudice to the attorney's client of allowing the expert to testify. Such prejudice may include the cost and inefficiencies of hiring new counsel and the client's rights to be represented by a lawyer of the client's own choosing. Obviously, any evidence of impropriety with regard to the selection of the expert would also be relevant.
In determining the propriety of cross-examining a former client designated as an expert witness, a lawyer must always determine whether he or she has material confidential information relevant to the pending dispute. If not, the lawyer need not undergo extensive analysis. However, if the lawyer does have such information, informed written consent by the former client should be obtained if the lawyer was retained after the expert was designated. In the more typical scenario where the lawyer was retained before the former client was designated as an adverse expert, the lawyer may seek consent, or the lawyer may ethically seek judicial intervention. Under either scenario, the lawyer would be well-served to disclose the prior representation to the client. This is consistent with Rule 3-500, the Duty to Communicate.