Use of experts in litigation is pervasive, but not quite yet ubiquitous. Nevertheless, there are a number of ways in which lawyers working with experts get by on luck. This article provides a short treatment of a set of topics that receive relatively little attention in litigation practice guides and cases: the ethical problems that may arise in use of experts in a litigation context.
Unless the expert is testifying in an attorney malpractice case, a lawyer and an expert are under different regimes when it comes to conflicts of interest. An expert is not limited by the Rules of Professional Conduct applicable to a lawyer. An expert does not owe a duty of loyalty to the client (or the lawyer). An expert may take positions in different matters that are inconsistent with the interests of the client. A confidential relationship and access to confidential information will not alone provide a basis for disqualification of an expert. The confidential information must be relevant to the case and it must be confidential litigation information, i.e., confidential information about litigation strategy (not merely confidential business information, even if it is at the heart of the case).