May 25, 1989
If a lawyer-expert witness expects to testify at trial adverse to the interests of a client of the lawyer-witness's law firm, a conflict of interest exists which cannot be waived by the client and the lawyer-witness's law firm is disqualified from representation of the client at trial.
References: MRPC 1.7(b), 1.10, 3.7(b).
A lawyer has agreed to serve as an expert witness in a condemnation case concerning whether the defendant's property had the possibility or probability of being rezoned, thereby increasing the value of the parcels. After rendering an opinion in favor of the defendants, the expert witness-attorney becomes associated "of counsel" with the law firm representing the condemning authority. The expert witness-attorney's testimony is expected to be rendered at trial, and be subject to cross-examination by attorneys of the expert-attorney's new law firm. The lawyer asks whether the law firm is disqualified from proceeding in the matter.
MRPC 3.7(b) provides:
"A lawyer may act as an advocate in a trial in which another lawyer in the firm is likely to be called as a witness unless precluded form doing so by Rule 1.7 [Conflict of Interest: General Rule] or Rule 1.9 [Conflict of Interest: Former Client]."
If a conflict of interest under either MRPC 1.7 or 1.9 disqualifies a lawyer from acting as an advocate and a witness, then MRPC 1.10(a) disqualifies the lawyer's entire firm from representation at trial. Comment, MRPC 3.7. The fact that a lawyer is "of counsel" rather than a partner or associate in the firm make no difference for the purpose of the imputed disqualification rule. See, Comment, MRPC 1.10; CI-466; CI-1071. However, a disqualification can be waived if the affected client consents to continued representation after consultation and if the firm reasonably believes the representation will not be adversely affected. MRPC 1.10(d), 1.7(b).
In the current case, the key questions are (1) whether a conflict of interest exists which would disqualify the expert witness-lawyer's firm under MRPC 1.7 and 1.10; and (2) whether such a disqualification prescribed by these rules could be waived by the client.
As noted in the ABA/BNA Lawyers' Manual on Professional Conduct, 61:507, a conflict of interest arises where a lawyer-witness's testimony could be contrary to the interests of the client of the firm:
"If the testimony of the lawyer-witness is adverse to the client's cause, cross-examination may be inhibited. There is also the risk that the credibility of the lawyer-witness will be impaired if the relationship with the client and the client's advocate is brought out by opposing counsel."
Further, the Comment to MRPC 3.7 observes:
". . . if there is likely to be substantial conflict between the testimony of the client and that of the lawyer or a member of the lawyer's firm, the representation is improper. The problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party."
In this inquiry, it is clear that the lawyer-expert witness would be rendering an expert opinion adverse to the client of the firm. The advocate representing the condemning authority would be faced with the awkward prospect of vigorously cross-examining an attorney in a professional affiliation with the examiner. There is no question that the advocate would be tempted to be less than zealous in these circumstances. A disqualifying conflict of interest under MRPC 1.7(b) clearly exists.
Under MRPC 1.10(d) and 1.7(b), the client can waive a disqualifying conflict of interest upon disclosure and consent only if the firm reasonably believes that the representation will not be adversely affected by the conflict. In the current case, it is clear that the representation would be adversely affected, for the reasons stated above. Therefore the conflict is not consentable, and the imputed disqualification of the lawyer-expert witness's entire firm cannot be waived.
In conclusion, if the lawyer-expert witness is called to testify at trial, the condemning authority's law firm (with which the lawyer-expert witness is affiliated on an "of counsel" basis) would be disqualified from representation at trial.