• DC Ethics Opinion Concludes Lawyer's Present and Former Roles as Expert Witness Does Not Create Former Client Conflict Despite Substantial Relationship of Matters
  • May 17, 2007
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • District of Columbia Bar Legal Ethics Committee, Opinion 337

    Brief Summary
    The District of Columbia Bar Legal Ethics Committee has concluded that a lawyer serving solely as an expert witness on behalf of a party does not establish an attorney-client relationship with that party. Consequently, DC RPC 1.9, which governs former client conflicts of interest, is inapplicable to expert witness engagements even if the former and present matters are substantially related.

    Complete Summary
    The Committee received an inquiry from a lawyer who had served as an expert witness on behalf of a bank in cases involving bank regulatory and supervisory matters. She was subsequently asked to provide expert testimony on behalf of an individual plaintiff who was suing the bank. The defendant bank’s attorney objected to her serving as an expert because one or both of the law firms who employed her had done work for the defendant bank in prior years. The attorney at issue had in fact never worked on any matter for the bank, nor had the law firm which currently employed her.

    The Committee concluded that a lawyer serving solely as an expert witness does not create an attorney-client relationship. The Committee emphasized that an attorney acting as an expert in her special area of knowledge has a duty to provide accurate and truthful information, even if it is adverse to the interests of the party that hires her. If she were to testify falsely, she would still be subject to discipline under D.C. RPC 8.4 (misconduct). In addition, communications between the attorney identified as an expert and the retaining law firm or its client are ordinarily discoverable    An expert is presented as an objective witness, which is inconsistent with an attorney’s duty to her client to advance the client’s objectives diligently through all lawful measures. See, e.g., D.C. RPC 1.3.

    Because the expert attorney is not engaged in an attorney-client relationship with the party for whom expert services are provided, there can be no violation of D.C. Rule 1.9 which precludes a lawyer who has formerly represented a client from representing another client in a substantially related matter in which the current client’s interests are adverse to the former client. The Committee noted that its conclusion was consistent with that reached by other jurisdictions such as Virginia and South Dakota.

    The Committee recognized that it is important to clarify the expert lawyer’s role in the case, preferably by a written engagement letter defining the relationship and its limits. The law firm which engages the expert has the duty to inform the client about the nature of the expert’s role. The Committee also conceded that the role of the expert can be blurred if the expert attorney becomes co-counsel or acts as a legal consultant. In those situations, the former client conflicts rule would apply.

    Significance of Opinion
    One can question how far this opinion can be extended. If, for example, the attorney-expert witness was subject to enforceable confidentiality obligations as a result of information learned during the prior engagement, the new expert engagement might be prohibited even though no attorney-client relationship ever resulted. Nonetheless, the Committee soundly concluded that there is a material difference between being an expert witness who owes no duties of advocacy and being a lawyer-advocate.