Freivogel on Conflicts
 
 
 
 

Lawyer as Expert Witness or Consultant

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(Note: conflict issues relating to non-lawyer expert witness or consultants are treated at other pages on this site.  To go there, click here.)  

        Does a lawyer who is hired as a testifying expert witness have a client?  What about a lawyer who is hired to consult on specialized issues but not necessarily to testify?  Can a lawyer do both in the same matter?

        These are difficult issues, and, with few exceptions, the cases and ethics opinions on lawyer/experts have been scattered and unclear.  (The ABA Ethics Committee has attempted to clarify these issues in Op. 97-407 (1997); more about that below.)  We are aware of several judicial opinions regarding lawyers as testifying experts.  One is Commonwealth Ins. Co. v. Stone Container Corp., 178 F. Supp. 2d 938 (N.D. Ill. 2001), and 2002 U.S. Dist. LEXIS 4033 (N.D. Ill. March 12, 2002).  There, a magistrate judge held that lawyer/testifying experts do not have a client, and the lawyers and the lawyers' law firms are not subject to Rules 1.7(a) or 1.9(a) & (b).  Other cases consistent with, and partially relying upon, Commonwealth Ins. are In re Dykstra, 2012 Bankr. LEXIS 2670 (C.D. Cal. June 12, 2012), Televisa, S.A. de C.V. v. Univision Communications, Inc., 2009 U.S. Dist. LEXIS 33689 (C.D. Cal. Apr. 2, 2009), and  North Pacifica, LLC v. City of Pacifica, 2004 U.S. Dist. LEXIS 18563 (N.D. Cal. Sept. 16, 2004).  In Outside the Box Innovations, LLC v. Travel Caddy, Inc., 2010 U.S. App. LEXIS 2333 (Fed. Cir. Feb. 1, 2010), the court said “we doubt” whether there was a lawyer-client relationship.   In seeming contrast, see American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, 117 Cal. Rptr. 2d 685 (Cal. App. 2002).  There, the lawyer was acting, not as an expert, but rather as a witness under Rule 30(b)(6) of the Federal Rules of Civil Procedure.  The court held that acting as a Rule 30(b)(6) witness was the kind of representation contemplated by California Rule 3-310(C), California's analogue to Model Rule 1.7(a).  The court cited Stone Container, but its attempt to distinguish it was not compelling. In Stinchfield Fin. Servs., Inc. v. Cuesta Title Co., No. CV09-8107 (Cal. Super. Ct. Jan. 20, 2015), a California trial court judge specifically rejected Stone Container in disqualifying a lawyer/expert.

         The Millgard Corp. v. Gadsby Hannah, LLP, 2006 U.S. Dist. LEXIS 47458 (D. Mass. July 13, 2006).  In one sentence the court ruled that a lawyer acting as an expert witness does not have a client.

        In Old Republic Nat'l Ins. Co. v. Warner, 2011 U.S. Dist. LEXIS 92582 (N.D. W. Va. Aug. 18, 2011), a magistrate judge held that a lawyer/expert witness did not have a client.  The court did not discuss any of the authorities appearing on this page.

        The Attic Tent, Inc. v. Copeland, 2006 U.S. Dist. LEXIS 57601 (W.D.N.C. Aug. 14, 2006).  The court disqualified a lawyer/expert witness because he had earlier been in the law firm now representing the other side.  Thus, the court appeared to treat the expert in this case as if he were a lawyer with a client.

        Plumley v. Doug Mockett & Co., Inc., 2008 U.S. Dist. LEXIS 105634 (C.D. Cal. Dec. 22, 2009).  The court seemed to treat the expert as if he had a client.

        Est. of Sexton v. Commissioner, T.C. Memo 2003-41 (Feb. 23, 2003).  A lawyer represented an estate in negotiating a settlement with the IRS.  A consent order was agreed to.  At the same time the lawyer was acting as an expert witness for the IRS on an unrelated matter.  After the settlement order was entered, the estate changed lawyers and sought to reopen the settlement, in part because of the prior lawyer’s relationship with the IRS.  The Tax Court denied the estate’s motion.  It noted that the lawyer did not have a conflict because he was not “representing” the IRS in the unrelated matter; he was only an expert witness.  In this connection, the court cited ABA Op. 97-407 (1997).  The court also noted that the estate made no showing that the alleged conflict had anything to do with the resolution of the estate’s dispute with the IRS.  The Ninth Circuit affirmed in Abbott v. United States Internal Revenue Service, 399 F.3d 1083 (9th Cir. 2005).  However, the appellate court did not base its holding on the lawyer/non-lawyer distinction, but rather on the fact that the taxpayer simply showed no prejudice to the taxpayer/client from the two different relationships.

        Lawyer/Testifying Expert Treated Like Lawyer.  Brand v. 20th Century Ins. Co., 21 Cal. Rptr. 3d 380 (Cal. App. 2004).  Helen Brand sued her insurance company in a coverage dispute.  She hired lawyer Barry Zalma as an expert witness on insurance coverage issues.  Twelve years prior Zalma had represented the insurance company on coverage and related matters.  The insurance company moved to disqualify Zalma as Brand’s expert witness.  The trial court denied the motion.  In this opinion the appellate court reversed, finding a substantial relationship between what Zalma had done for the insurance company and the issues in this case.  [Note: Zalma was not to act as a lawyer in this case.  The consensus is that a lawyer acting as a testifying expert does not have a client.  Should that have made a difference here?  The court did not discuss that issue.]

        Grant v. Lewis/Boyle, Inc., 557 N.E.2d 1136 (Mass. 1990), was a product liability case, involving an engineering expert for the plaintiff who happened to be a member of the bar.  Before trial, the defendant moved to disqualify the expert, because the expert had previously been retained by the defendant/manufacturer in connection with other matters.  The court held that because the expert had not "provided legal representation" to either party, the trial judge did not abuse his discretion in denying the motion.

        W.R. Grace & Co. v. GraceCare, Inc., 152 F.R.D. 61 (D. Md. 1993), involved a trademark lawyer retained by the defendant to testify on trademark law.  The expert had previously been interviewed by the plaintiff to be an expert in the same case.  That was a brief telephone interview, and the parties dispute whether the expert received any confidential information at that time.  The plaintiff moved to disqualify the expert.  Using reasoning that is not very clear, the court granted the motion.  The court said:

[I]t is . . . Mr. Allen's status as an attorney which counsels resolving all doubts in favor of disqualification to avoid the appearance of impropriety and to preserve the integrity of this proceeding.  Accordingly, Mr. Allen is disqualified.

        Wing v. Woodbury & Kesler, P.C., 2011 U.S. Dist. LEXIS 40312 (D. Utah April 13, 2011).  In this action Receiver for Debtor sued Law Firm No. 1 for fraudulent transfers.  Law Firm No. 1 had previously represented Debtor.  After Law Firm stopped representing Debtor, Debtor retained Law firm No. 2 to, among other things, make certain disclosures to securities regulators.  In the retainer Debtor waived the attorney-client privilege and authorized Law Firm No. 2 to disclose to the regulators all information it obtained from Debtor.  This opinion involves the desire of Law Firm No. 1 to retain a partner in Law Firm No. 2 ("Lawyer/Expert") to testify as an expert in this fraudulent transfer action.  The magistrate judge ordered that Law Firm No. 2 be permitted to retain Lawyer/Expert.  The court noted that ordinarily when a party seeks to hire an expert who has had a relationship with the other side, the court looks at whether there is an expectation of privacy in the prior relationship.  Here, because of the waiver of the privilege (as well as, evidently, confidentiality) the court held that there was no expectation of confidentiality to protect.  The court did not address the issue of whether Lawyer/Expert would have a client in this case.

        The following ethics opinions support the view that a testifying lawyer/expert does not "represent" the party retaining him or her: D.C. Op. 337 (Feb. 2007); Nassau County (N.Y.) Op. 2005-1 (April 6, 2005); Philadelphia Op. 88-34 (1988) (lawyer/expert may act for both parties at the same time in different matters); Va. Op. 1884 (1989) (lawyer/expert may testify for both parties in the same action on different issues).  Mass. Op. 99-3 (1999) takes a contrary view.  It said that a lawyer who represented the defendant in the past could not now be a testifying expert for the plaintiff.

        For Conflicts Purposes Lawyer Using Expert Does not Represent ExpertIn re Zimmer Knee Implant Prod. Liab. Lit., 2012 U.S. Dist. LEXIS 116406 (N.D. Ill. Aug. 16, 2012).

        Mich. Op. RI-21 (1989), involved a lawyer/expert for a defendant who, before trial, had become "of counsel" to the plaintiff's firm.  Because a lawyer in his own firm would have to cross-examine him, the firm had a conflict under Rule 1.7(b), which could not be waived.  The issue was not whether the lawyer/expert "represented" the plaintiff.

        Professor Nancy Moore does a good job of analyzing some of these authorities in her article about Sam Dash's resignation as Ken Starr's ethics counsel, Nancy Moore, The Ethical Role and Responsibilities of a Lawyer-Ethicist: The Case of the Independent Counsel's Independent Counsel, 68 Fordham L. Rev. 771 (1999).  Dash responds: Samuel Dash, Response: The Ethical Role and Responsibilities of a Lawyer-Ethicist Revisited: The Case of the Independent Counsel's Neutral Expert Consultant, 68 Fordham L. Rev. 1065 (2000).

       Other Articles.  Carl M. Selinger, The Problematical Role of the Legal Ethics Expert Witness, 13 Geo. J. Legal Ethics 405 (2000) .
      
        ABA Op. 97-407 (1997).  This is an unusually bold opinion.  The ABA Committee takes the disparate authorities mentioned above, along with other cases and opinions on related subjects, and fashions a series of clear rules regarding lawyer/experts.  The opinion has been cited in a few opinions on the issue of whether a lawyer/expert has a client.  One was RLI Ins. Co. v. General Star Indem. Co., 997 F. Supp. 140 (D. Mass. 1998) (court not at all clear why it cited opinion).  Another was Commonwealth Ins. Co. v. Stone Container Corp., 178 F. Supp. 2d 938 (N.D. Ill. December 20, 2001).  A Magistrate Judge held that a lawyer/testifying expert does not have a client, citing the ABA opinion.  Yet another is Est. of Sexton v. Commissioner, T.C. Memo 2003-41 (Feb. 23, 2003), discussed above.

        The Committee concludes that a lawyer/expert retained to testify does not have a client-lawyer relationship with the party retaining him or her.  It also concludes that the business of providing such testimony is not a "law-related service," so that the expert is not subject to Model Rule 5.7.  Hedging its bets, however, the Committee counsels the lawyer/expert to make clear, preferably in writing, his or her status with the retaining party.  The Committee says that agency law dictates that the lawyer/expert protect the confidences of the retaining party.

        If the testifying lawyer/expert has no client-lawyer relationship with the retaining party, it follows that the lawyer/expert may be able to represent another party against the retaining party.  The Committee cautions, however, that the lawyer/expert may have issues under Rule 1.7(b).  The lawyer/expert's duty of confidentiality under agency law to the retaining party in the first matter may prevent the lawyer/expert from adequately handling the second matter.  Likewise, the lawyer/expert's sense of loyalty to the retaining party may cause the lawyer/expert not to advocate vigorously for the "client" in the second matter.

        The Committee assumes that if the lawyer/expert is expected to "consult" but not testify, the lawyer/expert has a client-lawyer relationship with the retaining party.  We know of lawyers and law professors who hold the view that this is not necessarily always the case.  For example, can the lawyer/expert represent the retaining party's lawyer and not the retaining party?  Cannot the lawyer/expert be characterized as the retaining lawyer's clerk?  The opinion does not consider these possibilities.  One would think, regardless of the characterization of the non-testifying lawyer/expert, that the lawyer-client privilege and the legal ethics rules on confidentiality would apply.

        The opinion discusses some important differences in the status of the lawyer/expert who is expected to testify and the one who is expected only to consult.  A testifying expert may, either in discovery or at trial, have to reveal all information to which he or she becomes privy in preparation for testimony.  A mere consultant, on the other hand, as noted above, is expected to keep all information he or she learns confidential.  Some, or all, of that information may never be discoverable.  The Committee warns that the lawyer/expert's role may become confused, and that issues such as confidentiality or conflicts of interest may arise.

        Privilege and Discoverability.  Communications with testifying experts are generally deemed not to be covered by the privilege or work product doctrine.  See, e.g., Lugosch v. Congel, 219 F.R.D. 220, 249-50 (N.D.N.Y. 2003); Baum v. Village of Chittenango, 218 F.R.D. 36, 39-40 (N.D.N.Y. 2003); Vitalo v. Cabot Corp., 212 F.R.D. 478-79 (E.D. Pa. 2002); Shooker v. Superior Court, 4 Cal. Rptr. 3d 334, 339-40 (Cal. App. 2003); Mullins v. Tompkins, 2009 Fla. App. LEXIS 9955 (Fla. App. July 21, 2009); Adler v. Shelton, 778 A.2d 1181, 1192 (N.J. Ct. App. Div. 2001).  The Shooker court, however, held that the communications do not lose their protected status until the expert actually states an opinion in a deposition or declaration, or the experts' communications are produced to the other side in discovery.  See Shooker, 4 Cal. Rptr. 3d at 339-40.

        Proving Foreign Law.  In the following cases, the parties attempted to prove Italian law through the affidavits of their own Italian lawyers.  The courts held that their evidence was not sufficient because the witnesses were either "interested" or "not disinterested."  Evergreen Marine Corp. (Taiwan) Ltd. v. Global Terminal & Container Services, Inc., 2000 U.S. Dist. LEXIS 16208 (S.D.N.Y. 2000); Farrell Lines Inc. v. Columbus Cello-Poly Corp., 32 F. Supp. 2d 118 (S.D.N.Y. 1997).  In the following two cases the court discounted the foreign lawyers' testimony because they were representing the entity that called them in their home countries: In re Bridgestone/Firestone, Inc. Tires Products Liability Lit., 212 F. Supp. 2d 903 (S.D. Ind. 2002) (Venezuelan law); and Norwest Financial, Inc. v. Fernandez, 86 F. Supp. 2d 212 (S.D.N.Y. 2000) (Argentine law).  Bakalar v. Vavra, 2008 U.S. Dist. LEXIS 66689 (S.D.N.Y. Sept. 2, 2008), is a suit to establish true ownership of a drawing by Egon Schiele, "Seated Woman with Bent Left Leg."  The court needed to consider Swiss personal property law.  The plaintiff produced a Swiss lawyer to testify about Swiss law.  Only at trial did anyone disclose that the Swiss lawyer, at the time of the trial, represented one of the prior owners of the work, twice-removed from the plaintiff, in a tax proceeding in Switzerland.  Nevertheless, the court accepted the lawyer's testimony.
        
        Larson v. Rourick, 284 F. Supp. 2d 1155 (N.D.  Iowa 2002).  Malpractice suit alleging negligent failure to perfect a security interest.  The plaintiff’s lawyer contacted one partner in a law firm to act as an expert, but the lawyer declined to act.  The defendant’s lawyer retained another lawyer in the same law firm to be an expert, and she agreed to do so.  The plaintiff moved to disqualify the expert.  The magistrate held that the contacts by the plaintiff’s lawyer were preliminary and insufficient to warrant disqualifying the second lawyer/expert.

        Out-of-State Lawyer/Expert; "National" Standard of Care. Hamilton v. Sommers, 2014 S.D. LEXIS 108 (S.D. Oct. 29, 2014). Lawyer malpractice case. One of the claims against the lawyers was that they had a conflict of interest in an underlying matter. While malpractice appeals are usually poor vehicles for learning about conflicts, this opinion had an unusually perceptive discussion of whether conflicts principles are local or national. In this case an expert witness was a Minnesota lawyer (who later became a justice of the Minnesota Supreme Court). He attempted to opine that the standard of care regarding the lawyers’ alleged conflict was a national standard, effectively making him eligible to testify about South Dakota lawyers in a South Dakota case. The trial court struck that testimony, rejecting the national standard argument. In this opinion the supreme court disagreed and held the testimony was admissible.

        Need for Expert.  Malton v. Attia, 2013 ABQB 642 (CanLII) (Ct. Q.B. Alb. Oct. 29, 2013).  Lawyer represented Homeowners in a suit against a house inspection service.  Homeowners, believing that they did not receive an adequate award, brought this suit against Lawyer for malpractice.  The sole issue in this opinion is whether, and when, a plaintiff may, or must, call an expert in a legal malpractice case.  The opinion is significant in that the court discussed exhaustively decisions from almost every province.  The court concluded that the plaintiff need not, indeed, should not, call an expert witness unless the area of law involved is unusually specialized.  An example would be a provincial trial judge considering the conduct of a lawyer in a complex tax case before the Tax Court of Canada. [Our observation: the variations across Canada on the need for expert testimony are breathtaking.  This mirrors the experience in the United States.  Not only do the rulings vary from state-to-state, but also, occasionally, among judges sitting in the same court.]

        Title Co., LLC v. Northwest Title Ins. Agency, LLC, 2016 WL 6471212 (D. Utah Nov. 1, 2016). In this opinion the court denied a motion to exclude expert reports and testimony of  a lawyer/expert. We will not go into the details, but the opinion is a discussion of one court’s views on what such an expert can and cannot do and how to instruct the jury accordingly.
       
        Treatise
.  Rotunda & Dzienkowski §§ 1.7-6(b) & 1.9-2.

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