The Third District holds that an attorney, who inadvertently contacts an opponent’s expert, receives no confidential information, and acts ethically once notified of the improper contact should not be disqualified as counsel.
Stephen Purtill of The Law Offices of Joseph W. Carcione, Jr. represented William F. Collins in a personal injury case. Purtill hired Carl C. Clark, Ph.D., as an expert witness on the subject matter of windshields. Purtill was unaware that a year earlier Craig Sears, counsel for defendant Navistar, hired Clark as a consultant on the same subject matter. After Purtill disclosed Clark as a retained expert witness, Sears demanded withdrawal of Clark as an expert and recusal of the Carcione firm from the case. Sears advised Purtill that he had contacted Clark and discussed the nature of the case, defense theories, potential plaintiff theories, and Clark’s agreement to act as a consultant.
Navistar moved to disqualify Carcione asserting that Sears had disclosed confidential and strategic information to Clark. In opposition Purtill declared that he received no privileged information in his conversations with Clark and that Clark told had forgotten that he had talked with Sears.
Clark told Purtill that he received a police report and sent a letter to Sears with his opinion. According to Purtill the Sears – Clark contact had been brief and insignificant. When the dual representation came to light, Purtill informed Clark that he could not have further contact with him until the court sorted the matter out.
Carcione argued Navistar failed to demonstrate that Sears had imparted confidential information to Clark and thus could not prevail on the recusal motion. Collins would be unable to find other counsel to assist him because of the complexity of the case and Carcione’s lien for fees. The Carcione firm further argued Navistar had engaged in the impermissible tactic of suppressing the testimony of Clark, a leading expert on glass-plastic windshields, by retaining him without any intent of using him.
After the trial court ordered the disqualification of the Carcione firm Collins brought a motion for reconsideration. Clark submitted a declaration stating he spoke with Purtill and agreed to be a witness for Collins. Clark confirmed he did not tell Purtill about his prior contact with Sears because he failed to recognize it was the same case. After his designation as an expert witness Sears notified Clark which is when he discovered he had been retained by both sides of the case. Clark declared that he did not tell Purtill about the substance of any communication with Sears. The trial court denied the motion for reconsideration.
The Court of Appeal noted that a disqualification motion involves a client’s right to chosen counsel, an attorney’s interest in representing a client, a financial burden on a client to replace disqualified counsel, and the possibility that tactical abuse underlies the motion. A disqualification motion justifies careful review of the trial court’s exercise of discretion. Where there are no disputed facts the focus is on the legal significance of the undisputed facts and is a question of law.
Disqualification is proper where an attorney knowingly violates the rule against substantive contact with a consultant for the opponent because the attorney becomes privy to an opposing attorney’s work product or other confidential information. Where an attorney has had substantive contact with the opponent’s expert the test is whether the attorney possesses confidential attorney-client information materially related to the proceedings before the court. The party seeking disqualification does not need to reveal the confidential information, but should provide the court with the nature of the information and its material relationship to the proceeding. A rebuttable presumption then arises that the information has been used or disclosed during the prohibited contact.
Sears’s declaration was sufficient to establish that confidential attorneywork-product information was exchanged with Clark. Typically this shifts the burden of proof because the attorney who made the improper contact with the expert witness obtains control over the expert witness. However, it was inappropriate to shift the burden of proof to Collins because Clark remained a consultant for Sears and Sears provided no facts suggesting that Clark was no longer available to him for purposes of presenting evidence in favor of the motion. Thus Sears controlled the source of information to ascertain whether Clark had revealed confidential information to Purtill and there was no reason to shift the burden of proof.
Navistar failed to submit a declaration from Clark indicating that he had disclosed Navistar’s material confidential information to Purtill. The uncontradicted evidence was that Purtill did not know Navistar had previously retained Clark. Purtill declared that Clark did not reveal confidential information and had forgotten the prior retention by Sears. Thus the recusal order was improper.
In addition recusal was improper because the Carcione firm was innocent of wrongdoing when it hired Clark and acted ethically after this issue was discovered. In an analogous situation when an attorney inadvertently receives privileged material the attorney should refrain from examining the material and notify the sender that the attorney has what appears to be privileged material.
This publication is intended for general information purposes only and does not constitute nor is it intended to constitute legal advice. None of the material is intended to imply or establish standards of care applicable to any attorney in any particular circumstance. The reader must consult with counsel to determine how the concepts and decisions discussed herein may apply to specific circumstances.
The parties may then resolve the situation by agreement or court order. An attorney who inadvertently receives confidential information may be disqualified if the attorney fails to conduct him or herself in an ethical manner. In this situation the Carcione firm acted ethically when it refrained from talking directly with Clark until the court resolved the problem.
Comment: Disqualification is a heavy penalty to pay for an innocent mistake. Acting ethically in the face of an innocent error relieves both the attorney and the client of the potential drastic effects of the error.