Lawyer Serving as Expert Is Not Subject to Lawyer Conflict-of-Interest Rules

The majority view is that a lawyer retained as an expert witness is not acting in a representational capacity and that therefore the attorney conflict-of-interest rules do not apply. See, e.g., ABA Committee on Ethics and Professional Responsibility, Formal Opinion 97-407 (1997); Nassau County (New York) Bar Opinion 2005-1 (April 6, 2005); D.C. Ethics Opinion 337 (February 2007); Millgard Corp. v. Gadsby Hannah, LLP, 2006 WL 1973410, at *3 (D. Mass. July 13, 2006); Televisa, S.A. de C.V. v. Univision Comm’cs, Inc., 2009 U.S. Dist. LEXIS 33689 (C.D. Cal. Apr. 2, 2009); Grioli v. Delta Int’l Machinery Corp., 2005 WL 2838130, at *13 (E.D.N.Y. Oct. 29, 2005). But see, e.g., Plumley v. Doug Mockett & Co., Inc., No. CV 04-2868 GHK, 2008 WL 5382269, at *3 (C.D. Cal. Dec. 22, 2008).

Experts may separately be disqualified irrespective of whether they are lawyers. See, e.g., Grioli v. Delta Int’l Machinery Corp., No. 03-CV-02845-ADS-JO, 2005 WL 2838130, at *13 (E.D.N.Y. Oct. 29, 2005) (applying a three-part test: “(1) was it objectively reasonable for the first party who retained the expert to conclude that a confidential relationship existed; (2) was any confidential or privileged information disclosed by the first party to the expert; and (3) does the public have an interest in allowing or not allowing the expert to testify”).

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