Ethics Opinions

Opinion No. 99-3

Summary: A lawyer ought not act as a testifying expert for a party in a matter that is substantially related to a matter in which the lawyer represented the other party, even if the lawyer actually has no relevant confidential information.

Facts: A lawyer has been asked by the attorneys for the plaintiffs in civil litigation to testify as an expert on a question of the standard of care in a given industry, including compliance with various legal requirements. For purposes of this inquiry we are assuming that the matter is substantially related to a matter that was pending against the defendant many years ago at a time when the lawyer was general counsel to the defendant, but the lawyer asserts that she actually possesses no confidential information that is relevant to the current case. The lawyer has already reviewed pleadings and transcripts of depositions and shared with plaintiffs and their attorneys her impressions about the applicable standard of care.
Discussion: The issues involved in responding to this question implicate Mass. R. Prof. C. 1.9(a) and (c) and 5.7. Rule 1.9 provides:

(a) A lawyer who has formerly represented a client in a matter

shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter, unless the former client consents after consultation:
(1) use confidential information relating to the representation to the disadvantage of the former client, to the lawyer's advantage, or to the advantage of a third person, except as Rule 1.6, Rule 3.3, or Rule 4.1 would permit or require with respect to a client; or
  1. reveal confidential information relating to the representation

except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.

Rule 1.9 addresses the question when a lawyer may represent a new client against a former client without consent of the former client. It is phrased in terms of the so-called "substantial relationship" test that has been codified from the prior common law of professional responsibility. The trigger for application of the test is representation. It is possible that the lawyer's activities have gone beyond the normal activities of a testifying expert since the lawyer's services to date have involved discussions of strategy and the like that may constitute representation. We do not have enough facts to answer that question. If the lawyer is a consultant as well as a testifying expert, then the Massachusetts Rules of Professional Conduct apply and the lawyer would be disqualified by Rule 1.9(a), absent client consent after consultation. In these circumstances, one could not disentangle the lawyer's advice from the lawyer's role as expert. Her testimony as expert would be tainted, as it were, by the representation and she should be disqualified from testifying as an expert.
If the lawyer is acting solely as a "testifying expert," Rules 1.9 and 5.7 state, in complementary fashion, important principles relating to the lawyer's fiduciary duty of loyalty to former clients. A lawyer who represents or provides law-related services to a client is not thereafter to act contrary to the former client in a subsequent matter that is substantially related to the first matter. That was a basic rule of the law of professional responsibility before it was incorporated into the disciplinary rules. See the seminal opinion of Judge Weinfeld in T. C. & Theatre Corp. v. Warner Bros. Pictures, 113 F. Supp. 265, 268-269 (S.D.N.Y. 1953):

The Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. It will not inquire into their nature and extent. Only in this manner can the lawyer's duty of absolute fidelity be enforced and the spirit of the rule relating to privileged communications be maintained.
To compel the client to show, in addition to establishing that the subject of the present adverse representation is related to the former, the actual confidential matters previously entrusted to the attorney and their possible value to the present client would tear aside the protective cloak drawn about the lawyer-client relationship. For the Court to probe further and sift the confidences in fact revealed would require the disclosure of the very matters intended to be protected by the rule. It would defeat an important purpose of the rule of secrecy — to encourage clients fully and freely to make known to their attorneys all facts pertinent to their cause. Considerations of public policy, no less than the client's private interest, require rigid enforcement of the rule against disclosure.... Were he permitted to represent a client whose cause is related and adverse to that of his former client he would be called upon to decide what is confidential and what is not, and, perhaps, unintentionally to make use of confidential information received from the former client while espousing his cause. . . .

In codifying the common law of professional responsibility in Rule 1.9, the disciplinary rules specifically codified only the situation where the lawyer with a former client "represents" a new client against the former client in a substantially related matter. It does not address the situation where the lawyer testifies as an expert on behalf of a new client against a former client in a substantially related matter. But the principles involved are the same in this latter case. The same threat to the fidelity of the lawyer to his former client and to the purpose of the rule to encourage clients to communicate with their lawyers is involved. The same possibility of inadvertent use of confidential information, prohibited by Rule 1.9(c), and the same judicial probing of the client's confidential information are involved. For these reasons, our judgment is that the principles embodied in Rule 1.9 apply to the testifying expert, either by a broad interpretation of the concept of "representation," or, more likely, by applying the common law of professional responsibility to the situation of the testifying expert.
Our view is strengthened by the wording of Rule 5.7. That Rule provides:

(a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided:
(1) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal services to clients; or
(2) by a separate entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services of the separate entity are not legal services and that the protections of the client-lawyer relationship do not exist.
(b) The term "law-related services" denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.

Rule 5.7 is not restricted to situations of representation. It applies the Rules of Professional Conduct to the provision of law-related services in circumstances not distinct from the lawyer's provision of legal services. The definition of law-related services in 5.7(b) includes services that might reasonably be performed with, and are related to, the provision of legal services. We believe that expert testimony about a standard of care that relates to the meeting of legal requirements meets that part of the definition.
We are aware that the ABA Committee on Professional Ethics has reached a contrary conclusion from ours in interpreting Rule 1.9 and Rule 5.7. ABA Opinion 97-407 concluded that "A lawyer who is employed to testify about requirements of law or standards of legal practice, for example, acts like any other non-lawyer expert witness. . . The testifying lawyer . . . may help the law firm to define potential areas for further inquiry, and he is expected to present his testimony in the most favorable way to support the law firm's side of the case. He is nevertheless presented as objective and must provide opinions adverse to the party for whom he expects to testify if frankness so dictates. A duty to advance a client's objectives diligently through all lawful measures, which is inherent in a client-lawyer relationship, is inconsistent with the duty of a testifying expert." While the ABA Committee recognized the expectation that the testifying expert "will present his testimony in the most favorable way to support the law firm's side of the case," it underplayed, in our view, the broad policy implications of its conclusion. Presenting her testimony in the most favorable way for the hiring law firm would require the lawyer to testify in the least favorable way for her former client and in a matter that is substantially related to her representation of her former client. For the reasons outlined above, we believe that such a result is incompatible with the duty of loyalty owed to the former client.
A divided ABA Committee also concluded that Rule 5.7 ought not be interpreted to apply to testifying experts because they do not present the problem Rule 5.7 was designed to meet and because "lawyers serving as testifying experts do not offer their services ‘in conjunction with' the legal services they offer to their clients." The ABA Committee seems correct that the major problem that Rule 5.7 was designed to meet related to lawyers engaging in business ancillary to their law practices. The language of the Rule, however, is broader and extends beyond the quoted language. For the reasons set forth above, we agree with the minority of the ABA Committee that the language used in Rule 5.7 covers and should be applied to the testifying expert.
This Opinion is that of a committee without official governmental status.
Permission to publish granted by the Board of Delegates on April 16, 1997. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official government status.
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