LACBA 2005-07-18

What ethical duties apply when a California lawyer learns that a former client has been designated as an opposing party's expert witness in a current case?

Short answer: Whether the lawyer can take or continue the representation depends on whether the lawyer holds confidential information from the former client that is material to the new matter. The opinion concludes that without such material confidential information no conflict exists, and that even when such information is present the lawyer who is already of record may seek judicial relief instead of withdrawing.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

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LACBA Ethics Opinion 513: Cross-Examination of Former Client as Expert Witness

Short answer: Under former California Rule 3-310(E) and Bus. & Prof. Code section 6068(e)(1) as analyzed in this opinion, the controlling question is whether the lawyer obtained from the former client confidential information that would be material to the new representation. If not, there is no conflict and the lawyer may proceed. If so, the lawyer who is asked to accept a new engagement must obtain the former client's informed written consent; the lawyer who is already of record when the conflict arises may, in addition to seeking consent, ask the court for relief (such as precluding the expert or ordering a limited waiver).

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Los Angeles County Bar Association's view of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

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Plain-English summary

The committee analyzes a lawyer who twenty years earlier represented a doctor in a medical-board proceeding; the same doctor has now been designated by the plaintiff as an expert witness in a case in which the lawyer is of record for the defense. The committee distinguishes two scenarios.

In Scenario One, a lawyer is offered a new representation after the former client has been designated as an expert. Former Rule 3-310(E) applies on its face: the lawyer may not accept the new representation if it would require use or disclosure of confidential information material to the new matter, absent the former client's informed written consent. The committee, following American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, holds that the lawyer cannot evade the conflict by promising not to use the confidential information; the conflict turns on the existence of the information, not on the lawyer's promise.

In Scenario Two, the lawyer is already of record when the former client is later designated as the opposing expert. The committee notes a textual feature of former Rule 3-310(E): the rule restricts accepting employment but does not by its terms require withdrawal from continuing employment. Read together with section 6068(e)(1), the lawyer who reasonably concludes material confidential information from the prior representation would be in play may proceed in one of several ways: seek the former client's informed written consent under former Rule 3-310(C); or, if consent is refused, seek judicial intervention, such as an order precluding the former client from serving as an expert if another expert is available, treating the former client's expert designation as a waiver, or ordering a limited waiver to the extent reasonably necessary.

The committee anchors the second scenario's judicial-relief option in Hernandez v. Paicius (2003) 109 Cal.App.4th 452, which contemplates that a lawyer may resist disqualification when a party's right to chosen counsel may outweigh the opposing party's freedom to select a particular expert, while warning that an unresolved conflict by trial may force a mistrial.

The opinion treats the duty under Rule 3-310(B) as separate and applicable in both scenarios: the lawyer must disclose to the current client, in writing, the nature of the lawyer's relationship with the former client now serving as the opposing expert.

In practice

The opinion holds that, under former California Rule 3-310 as it stood in 2005, the threshold question in this scenario is whether the lawyer has material confidential information from the former-client expert. If the lawyer does not, the lawyer may continue (or accept) the representation; if the lawyer does, the lawyer's options depend on whether the lawyer is being offered the engagement (Scenario One) or is already of record (Scenario Two). In Scenario Two, the lawyer may seek either the former client's consent or judicial relief; the committee does not require immediate withdrawal as the only option.

California's professional-conduct rules were revised effective November 1, 2018; former Rule 3-310(E) corresponds substantially to current Rule 1.9 (duties to former clients), and the disclosure duty in former Rule 3-310(B) is addressed in current Rules 1.7(c)(2) and 1.4. The committee's analysis predates the 2018 revisions.

Common questions

Q: Does the conflict arise the moment a former client is designated as the opposing expert?

A: Per the opinion, no. The conflict turns on whether the lawyer obtained confidential information from the former client that is material to the new matter. If not, there is no conflict from the designation alone, although Rule 3-310(B) still requires written disclosure to the current client.

Q: Can the lawyer promise not to use the confidential information in cross-examining the former client?

A: Per the opinion, no. Following American Airlines, a lawyer cannot evade Rule 3-310(E) by promising not to use the former client's confidential information; placing the burden of deciding which client to favor on the lawyer is what the rule is designed to prevent.

Q: If a former client is later designated as the opposing expert, must the lawyer withdraw?

A: Per the opinion, not necessarily. The lawyer who is already of record may seek the former client's consent under Rule 3-310(C); if consent is refused, the lawyer may ask the court to preclude the former client from serving as an expert (if another expert is available), to treat the designation as a waiver, or to order a limited waiver of the duty of confidentiality.

Q: Does the lawyer have to tell the current client about the prior representation?

A: Per the opinion, yes. Former Rule 3-310(B) requires written disclosure to the current client of the nature of the lawyer's relationship with the former client now serving as the opposing expert, regardless of whether a material-information conflict exists.

Q: What happens if the conflict is not resolved by trial?

A: Per the opinion's quotation of Hernandez v. Paicius, if the conflict is not resolved by the time the former client is called to the stand, the court cannot preside over the lawyer's attack on the lawyer's own client and must declare a mistrial.

Background and rules framework

The opinion interprets former California Rules 3-310(B), 3-310(C)(1), 3-310(C)(2), 3-310(C)(3), and 3-310(E); former Rule 5; and Bus. & Prof. Code section 6068(e)(1). It anchors the adversity analysis in American Airlines v. Sheppard Mullin (2002) and Goldstein v. Lees (1975) and engages the judicial-relief framework through Hernandez v. Paicius (2003), Collins v. State of California (2004), and Shadow Traffic Network v. Superior Court (1994).

Citations and references

Rules of Professional Conduct:

Former California Rule 3-310(B) (written disclosure of relationships)
Former California Rule 3-310(C) (informed written consent for conflicts)
Former California Rule 3-310(E) (former-client adverse employment)
Former California Rule 5 (predecessor of 3-310)

Statutes:

Bus. & Prof. Code section 6068(e)(1) (duty of confidentiality)

Cases:

American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal.App.4th 1017 (2002), adversity under Rule 3-310(E)
Collins v. State of California, 121 Cal.App.4th 1112 (2004), motion to disqualify and showing required
Flatt v. Superior Court, 9 Cal.4th 275 (Cal. 1994), successive vs. simultaneous representation
Goldstein v. Lees, 46 Cal.App.3d 614 (1975), former-client confidentiality and undivided loyalty
Hernandez v. Paicius, 109 Cal.App.4th 452 (2003), chosen counsel versus chosen expert
In re Complex Asbestos Litigation, 232 Cal.App.3d 572 (1991), considerations in disqualification
People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc., 20 Cal.4th 1135 (Cal. 1999), client confidentiality
People v. Cox, 30 Cal.4th 916 (Cal. 2003), no conflict where no confidential information
River West, Inc. v. Nickel, 188 Cal.App.3d 1297 (1987), waiver by delay
Shadow Traffic Network v. Superior Court, 24 Cal.App.4th 1067 (1994), informal resolution before disqualification motion

Other opinions cited:

Cal. State Bar Formal Opinion 1996-146: types of "confidence" under section 6068(e)(1)

Source

Landing page: https://lacba.org/?pg=ethics-opinions
Original PDF: https://lacba.org/docDownload/2010590