Ezel / Ethics Opinions / SBAND

Must a lawyer withdraw as an expert for plaintiffs whose unrelated lawsuit names a corporation represented by the lawyer's firm?

Short answer On the stated facts, the committee found no Rule 1.7 conflict requiring withdrawal as an expert. It said the lawyer should disclose the firm's representation to the plaintiffs and obtain their consent to the continued expert role under Rule 1.7(c).
Bar
SBAND
Issued
February 16, 1993
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1993. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source.
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 on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A lawyer was asked to testify as an expert for plaintiffs in a case against a parent corporation and its subsidiary. His firm had represented the parent in two unrelated matters, one closed and one potentially ongoing. The firm had never represented the subsidiary, and the lawyer was not acting as counsel for any party in the lawsuit.

The committee concluded that Rule 1.7 did not require the lawyer to withdraw as an expert. Its analysis assumed the lawsuit was entirely unrelated to the firm's corporate work and that there was no concern about using the parent's confidential information.

The committee also identified a possible effect on the plaintiffs if continued corporate representation later required the expert to withdraw. It said the lawyer should disclose the firm's representation to the plaintiffs and obtain their consent under Rule 1.7(c) to his continued expert role. It declined to reach the request's remaining questions.

Currency note

This opinion was issued in 1993, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement.

Common questions

Q: Did the firm's work for the parent corporation require withdrawal as an expert?

A: No. The committee found no conflict requiring withdrawal on the stated facts, including that the litigation was unrelated to the firm's corporate work.

Q: What did the committee say about the plaintiffs' consent?

A: It said the lawyer should disclose the firm's prior representation and obtain the plaintiffs' consent to his continued expert role under Rule 1.7(c), if not already done.

Background and rules framework

The opinion applies North Dakota Rule 1.7 to a lawyer's expert work while his firm represented a corporation involved in unrelated litigation.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rule 1.7, conflicts of interest.

See also

Source

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.

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