V. Expert Disqualification and Conflicts: Summary and Guidance

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

V. Expert Disqualification and Conflicts: Summary and Guidance

Courts should be reluctant to disqualify expert witnesses.²¹⁴ Such reluctance has one foot in policy²¹⁵ and one in practice.²¹⁶ As a matter of policy, courts must balance (1) the need to protect opinion work product and client confidences and maintain the integrity of the judicial process with (2) the need to ensure that parties have access to qualified expert witnesses who possess useful specialized knowledge.²¹⁷ Courts must be mindful that if experts are too easily disqualified, attorneys and parties "will be encouraged to engage in a race for expert witnesses holding adverse opinions and . . . to create some type of inexpensive relationship with those experts" to conflict them out of cases.²¹⁸ Such behavior threatens the integrity of the judicial process by depriving courts of the benefit of experts' knowledge and insight, and it deprives parties of the assistance of qualified expert witnesses.²¹⁹

Lawyers should understand that merely consulting with an expert will not bar the expert from potentially working for an adversary. Lawyers must recognize that information disclosed in expert consultations may find its way into adversaries' hands unless they take appropriate precautions to ensure the confidentiality of the information. They should further appreciate that just because they or their clients employed or worked with a particular expert in the past, or even in currently pending cases, that relationship does not compromise the expert's ability to take adverse matters either concurrently or in the future. As a result, the attorney could have to vouch for the expert's credibility, qualifications, and the like in one case, and turn around and undermine them in another.

In terms of practical advice, lawyers should use engagement letters with expert witnesses just as they do with clients. The lawyer should include in the engagement letter an explanation of the expert's duty of confidentiality.²²⁰ The lawyer may instruct the expert not to discuss the case with other lawyers or with the expert's colleagues, although such specificity is not required. Broad confidentiality obligations are best for all concerned. If the lawyer provides the expert with any materials or communicates with him in writing, work product should be clearly identified.²²¹ Lawyers are wise to carefully list the materials being provided to an expert witness in any accompanying engagement or transmittal letter in order to create a specific record in the event of a later controversy. Before sharing confidential information, lawyers should ask potential experts to run formal conflict checks or to make the best inquiry they can in their particular situation. Those conflicts checks, whether formal or informal, should target not only adverse parties but also opposing counsel. Finally, lawyers may wish to consider paying the expert a retainer or fee or expense advance to cement the relationship and to evidence the client's expectation of confidentiality.

Lawyers have long been advised to inquire into experts' prior employment to ferret out potential conflicts of interest.²²² In this vein, lawyers should exercise particular caution when considering whether to hire as an expert witness an adversary's former employee or contractor. Although it is too strong a statement to say that lawyers should never hire opponents' former employees or contractors as expert witnesses,²²³ the potential for such experts to be disqualified is so high that lawyers must thoroughly vet adversaries' former employees or contractors turned experts before retaining them. Factors to consider include (1) the nature of the expert's former employment, including whether she...