Tuesday, May 11, 2010

Law Firm Disqualification -- Expert worked for both sides of same matter

A firm was recently disqualified from a malpractice suit because an expert witness spent time working on the opposite side of the same matter before joining the firm. The expert at hand was not ethically screened or otherwise prevented from communicating with the team handling the same matter at his new firm, Bressler, Amery & Ross. In fact, he reportedly billed 15 minutes to the matter after joining opposing counsel. 

The expert: "testified that he had no recollection of the conversation with Reiser. And he called the disqualification motion a 'litigation stunt.'" He also vouched that he had no recollection of receiving any written or verbal confidential information while working on the opposite side of the matter. But the court saw the 15 minute time record as a smoking gun pointing to a clear violation of professional rules and the expert's protestations as "ringing hollow."

The disqualified firm may appeal, arguing that the only basis for the decision is the "appearance of impropriety," a standard it says has been "abandoned" by local New Jersey Rules of Professional Conduct. Clearly, appearances hurt in this instance -- the assignment of a lawyer to a previous matter, and the failure to employ any manner of ethical screen or information barrier when the lateral joined the new organization didn't help matters.

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