Ethics

In this Federal Circuit decision (2/1/2010):

A lawyer for King & Spaulding had been an expert witness for plaintiff in the trial court in connection with an application for counsel fees form defendant. Counsel fees were denied.

 On appeal of that issue, K&S lawyers first appeared to represent the defendant and plaintiff moved to disqualify the firm because of the trial court affidavit of a K&S lawyer as its expert.

The parties argued over whether the expert had an attorney-client relationship with the plaintiff. The court thought not. I agree.

However, it also concluded that the firm (as defendant's counsel) would now be in a position of having to challenge the credibility of its own lawyer's expert opinion, warranting disqualification absent waiver by defendant which was not shown.

Three interesting things here: First, plaintiff moved to disqualify the firm but the court did not find any violation of a duty to it, only to the defendant. The defendant resisted the disqualification. Why would the court opt to "protect" the defendant on plaintiff's motion?

Second, why didn't the court cite the advocate witness rule, which will sometimes impute a an advocate/witness conflict throughout a firm? Perhaps the answer is that imputation of an advocate/witness conflict depends on Rule 1.7 which the court did cite. 

But it's still curious that the plaintiff was able to win disqualification because of the firm's conflict with the defendant, who did not protest. Can the defendant now file a waiver? Apparently not because the court ordered the defendant to return with new counsel.

Third, and most curious, once the motion to disqualify was filed, why didn't the defendant (or K&S) anticipate the court's eventual line of reasoning and submit an informed consent from the defendant?  While the court's basis may not have been part of the plaintiff's motion, it was foreseeable that the court might pursue this line (whether it should have done so is another matter). The issue could have been addressed and a waiver offered.