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Confidentiality and Discretion of an Expert Witnesses to Avoid Conflicts of Interest

Avoiding a conflict of interest is critical to remain a designated expert witness on a case and prevent disqualification from the judge which may remove the testimony possible. By following certain tips and removing access to reports, information and testimony, the professional may increase the possibility of staying on the case when presenting reliable testing and relevant information.

What Is a Conflict of Interest?

When an expert witness has knowledge of one side while working for another, he or she may cause or expose a conflict of interest within the case. Sometimes, the professional worked with the other legal team before and knows the strategies used. Other times, the expert witness will communicate with the opposing lawyer and speak about the case contents. This could cause a conflict of interest that disqualifies one or both of the parties involved in the spoken or written details. Another conflict of interest could exist when the expert knows the opposite party’s expert or works with him or her and may provide assistance for the other side.

Disqualification in the Courtroom

If the expert is unable to avoid a conflict of interest, he or she could face a disqualification as an expert witness for the case. If either
the lawyer or judge involved in the event receives knowledge of or is aware of the problem in communication or knowledge about the other legal team, the expert could suffer the consequences. Disqualification may not remove the expert from the case completely if the lawyer decides to use him or her as a consultant, but it could cause legal problems or issues with professionalism that may extend to the professional circle of peers.

Communication with the Opposing Lawyer

Some of the problems where a conflict of interest arises involve the communication between the opposing lawyer and the expert witness. Sometimes, the contact results in the disqualification of one or both professionals. This is often due to the details each person will speak of when in communication. They are both prohibited from speaking of the case details, as this could cause a problem such as a conflict of interest for both or either with the case. The best situation involves as little contact during the case as possible for each professional. Then, it is possible to increase the prevention of a conflict of interest.

Some communication with the opposing lawyer is not specific to the case details but so that the expert witness may change legal team sides. The other lawyer may want to poach the professional for his or her knowledge or skills with the subject matter. In these situations, the expert witness may flip to the opposing legal team with a new retention contract or a legally binding document for his or her services. If the other lawyer does not attempt to impose a breach of contract or other complications with this matter, the judge may disqualify the expert for a conflict of interest if he or she has details about the strategy or case specifics with the other lawyer when switching sides.

Confidentiality and the Duty of Loyalty

The case requires a level of discretion when communicating and contacting others. The expert witness must remain formal and keep all information confidential. This includes when speaking to or with other lawyers and experts. The client may demand discretion and privacy depending on the subject matter and specific issues involved in the case. Any affiliation with other lawyers during his or her career should remain away from the case and not affect the services the expert supplies for the courtroom. Resolution of a conflict of interest may result in disqualification, but the expert may resolve it by keeping all matters fully and completely confidential so that the conflict is no longer an issue.

While some experts will switch sides during the case or before the matter progresses too far, others will understand and ensure their duty of loyalty remains intact. The expert has a duty to provide services to the lawyer and help the case move along through testing and testimony. To remain loyal and unbiased is an important aspect of the scope of services the professional should give to the lawyer and client.

Avoiding the Conflict

The expert must ensure the confidentiality of information, keep the case details private and ensure communication with other professionals does not breach any duty to the lawyer or client even if a retention contract does not exist. He or she may avoid the conflict of interest in these ways.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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