Conflict of interest using an expert witness

With the significant impact an expert witness can have on a case, it is imperative to run a conflict check before an attorney hires an expert witness. The purpose of a conflict check is to ensure that an expert witness can serve a client free from any conflicts of interest. Conflicts of interest can prevent an expert witness from committing to a client at all, or could lead to the expert being distracted by another interest or commitment to someone else. Indeed, an expert witness can be disqualified by the court or another party due to a conflict of interest, so conflict checks are crucial before an attorney selects an expert witness for the case.

Knowing that conflict checks are an expected part of the process of being an expert, expert witnesses should prepare and keep current a list of attorneys and law firms that he or she has done business with in the past. Additionally, the list should also record the identities of the attorneys’ clients as well as any parties and attorneys the witness was adverse to in those proceedings. An expert witness may also be well advised to retain records of all of his or her own clients, investments, and other business dealings, because these could create a source of conflict depending on the nature of the witness’s expertise. Ideally, this system should be computerized, such as through the use of a spreadsheet or actual software designed specifically to check for conflicts of interest. This will make checking for conflicts much more efficient and effective.

When an attorney contacts an expert witness, the attorney should provide the following information to the expert witness for conflict check:

1.         The attorney’s name and law firm;
2.         The name(s) of the attorney’s client(s);
3.         The full name(s) of the opposing party or parties;
4.         The name(s) of the opposing counsel and law firm(s);
5.         The name of the opposing expert witnesses (if applicable);
6.         If the dispute is a medical malpractice case, the attorney should also provide the name of the hospital or medical facility involved. This is because if the medical expert witness has done work at the defendant’s hospital, that could constitute a conflict of interests.

Once the expert witness has the information, he should check to see whether or not he is affiliated in any way with the opposing parties, attorneys, or other entities involved in the case. If such an affiliation exists, the expert should immediately disclose it to the attorney seeking to retain his or her services. Note, it is usually not necessary to note the nature of the conflict, especially if there is a confidentiality agreement or privilege (like doctor-patient confidentiality) at play. However, in some instances it may be possible to testify as an expert even if there is some affiliation provided that the relationship is reasonably remote or that it does not create a conflict (e.g., if the expert and the other person or entity’s interests are not at odds or are aligned). If in doubt, the expert and the attorney should discuss the possible conflict to determine the appropriate course of action and level of risk the attorney and client are willing to accept.

Thus, whenever accepting a new matter, it is a smart practice for the expert witness to research and determine whether there may be a conflict of interests. It would also be wise to provide any information the expert has available regarding past relationships (at least, those that are not confidential) to the attorney to allow for an independent conflict check. When in doubt, an expert witness should disclose any matters of concern to the retaining attorney and check whether a relationship might constitute a conflict of interests. Some relationships may not be sufficient to constitute an actual conflict. As a result, so long as the expert witness is comfortable with that risk, the final determination of whether to move forward despite the relationship should be made by the attorney and his or her client.

By: Christopher Eri, J.D.