May 17, 2023 – If a firm lawyer serves as an expert witness for a company, can the firm take on a new matter adverse to the interests of that company?

A related question: If you are serving as an expert witness and do not have a client, what does that mean for conflicts?

Question

I am currently retained as an expert witness by lawyers representing a bank in a malpractice action against the bank’s former law firm, and expect to testify at trial of the matter.

Now, my current law firm has been asked to represent a new client in a matter adverse to the bank. The new matter against the bank is unrelated to the matter in which I am serving as an expert witness, and there is a debate within our firm as to whether it would be a conflict to accept the new matter.

We almost certainly will turn the new matter down for business reasons, but we wonder whether we would be prohibited by the disciplinary rules from accepting the new matter.

Is a law firm conflicted out from taking any matter adverse to a person or entity when a lawyer from the firm is serving as an expert for the person or entity?

Answer

As a preliminary matter in considering this question, SCR 20:1.10(a) imputes most conflicts within a private law firm to all lawyers associated with that firm, so any conflicts the lawyer serving as a testifying expert would have would be imputed to all other lawyers within the firm.

With respect to the conflict question, SCR 20:1.7 governs current client conflicts, and states in relevant part:

(a) Except as provided in par. (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

Does an Expert Witness have a Client?

To determine if (a)(1) is applicable, the question of whether a lawyer who acts as an expert witness in a matter has a “client” for purposes of the disciplinary rules must be answered.

Unsurprisingly, the answer is no, as discussed in ABA Formal Ethics Op. 97-407:¹

The Committee believes, however, as long as the lawyer’s role is limited to service as a testifying expert and this is explained at the outset, the client of the law firm which has engaged the testifying expert’s services cannot reasonably expect that the relationship thus created is one of client-lawyer. A lawyer who is employed to testify about requirements of law or standards of legal practice, for example, acts like any non-lawyer expert witness. The testifying expert provides evidence that lies within his special knowledge by reason of training and experience and has a duty to provide the court, on behalf of the other law firm and its client, truthful and accurate information.

With no “client” of the expert witness, there is no adversity of interests between clients and no conflict under SCR 20:1.7(a)(1).

What are the Risks of Material Limitation?

The question of whether there is a significant risk of a material limitation due to duties the expert witness owes to the hiring party is governed by SCR 20:1.7(a)(2).

The source of such duties would not be the disciplinary rules, but rather the law of agency or the contract for the expert witness services. Such possible conflicts are discussed in ABA Formal Ethics Op. 97-407:

At least in circumstances where the party’s material confidential information clearly would be useful in the representation of the client, the Committee is of the opinion that the testifying lawyer could not reasonably believe that the representation of a client would not be adversely affected and, therefore, client consent is no cure. Similarly, where the testifying expert might be called upon to testify for the party and could be subject to cross-examination by a lawyer from the expert’s own law firm, on behalf of a client of the firm, the representation of a client would be barred both by Model Rule 1.7(b)² and by Model Rule 3.7(b).

However, if

• the potential new matter is unrelated to the matter in which the lawyer is serving as an expert so that information from that matter is irrelevant to the new matter; and

• there is no prospect of the lawyer serving as an expert being an adverse witness against a firm client;

the opinion takes the position that there is a conflict which would be subject to the written and signed informed consent of the potential client:

If the lawyer reasonably concludes that despite the possibility of a material limitation, the representation of a client will not be adversely affected by his duties as a testifying expert, the consent of the client after consultation is nonetheless required. This may be true, for example, if the matter in which the lawyer will testify and the matter in which a client seeks representation are entirely unrelated, and no material confidential information that the testifying lawyer has learned from the party has relevance to the second matter.

The testifying expert must also consider whether their own personal and financial interests impose a significant risk of a material limitation in the firm’s ability to represent the potential client.³

Note that if the firm determines there is a conflict and the conflict is subject to written and signed informed consent, the consent must be obtained from the potential client, not from the party for whom the lawyer is serving as an expert as that party is not a client of the law firm.

The Takeaways

The larger point, however, is that because the testifying lawyer does not have a client, the conflict analysis must be undertaken accordingly, and the fact that a lawyer associated with a firm has or is serving as a testifying expert in a matter does not automatically create a client-like conflict for the firm.

There are three other points worth mentioning:

While serving as an expert witness does not create a lawyer-client relationship, such a relationship can be easily formed even when the lawyer does not so intend, so it is important for the testifying lawyer to be very clear about their role and to act accordingly.⁴

While this column does not address former client conflicts, the same responsibilities of the testifying lawyer may create a material limitation when a new client requests representation from the firm against a person or entity for which a firm lawyer served as an expert witness.

Finally, ABA Formal Ethics Op. 97-407 takes the position that expert services are not “law related services” as that term is used in SCR 20:5.8, and as such, under that rule, a firm lawyer providing expert services to a nonclient of the firm would not be required to follow the client specific disciplinary rules in connection with the work of the testifying expert.⁵

Endnotes

¹ See also D.C. Ethics Op. 337; Nassau County (N.Y.) Op. 2005-1; Philadelphia Op. 88-34; Utah Op. 18-03; Va. Op. 1884.

² At the time ABA Formal Ethics Op. 97-407 was drafted, Model Rule 1.7(b) was substantially similar to Wisconsin’s SCR 20:1.7(a)(2).

³ See D.C. Bar Ethics Op. 337 (1997).

⁴ ABA Formal Op. 97-407 makes a distinction between a testifying expert and a consultant, with the latter being seen to form a lawyer-client relationship.

⁵ The lawyer serving as an expert would still be bound by the rules that govern all lawyers at all times, such as SCR 20:8.4.