Lawyers As Expert Witnesses

The practice of LEVENTHAL pllc is broad and includes an array of Minnesota civil litigation (litigation involving colleagues, customers, competitors, vendors and lenders, we sometimes say). But we have niche expertise in a particular area of Minnesota civil litigation: legal malpractice.

As such, by statute, we are obligated to hire attorney experts in the vast majority of legal malpractice lawsuits.

We are therefore acutely aware of the challenges of retaining lawyer-experts.

One obvious challenge is that lawyers (like doctors) do not relish the thought of helping sue other members of their elite classes. The sense of “there but for the grace of God go I” or the “code of silence” is not pervasive but it is real.

Another obvious challenge at the get-go in hiring a lawyer expert witness (for legal malpractice cases or others) is the challenge of conflicts-of-interest.

If we are suing Attorney A, can we retain Attorney B, a lawyer who used to work at A’s law firm? Can we retain Attorney B who shared our client as a client when Attorney A did? Can we retain Attorney B, who took over the underlying matter for which A is being charged with malpractice?

This week, the Minnesota Court of Appeals issued an opinion as to the appropriate standard for the disqualification of an attorney expert based on prior representation of the party against whom he is offered as an expert.

The Minnesota Court of Appeals sided with Defendant Allianz Life Insurance Company who sought to disqualify its former lawyer, attorney Mike Rothman, adopting “the federal standard:”

The federal standard does not require a showing that the attorney-expert intends to actually use confidential information gained during prior representation; rather, it ensures that an attorney-expert is disqualified if there is even a risk that the attorney will rely on that confidential information.

This is a fairly generous standard for those seeking disqualification.

We’ll see if the plaintiffs seek Minnesota Supreme Court review and, if they do, whether the Minnesota Supreme Court will review the case and do as it did in Walsh v. U.S. Bank, N.A. (in which the Minnesota Supreme Court recognized a more defendant-friendly federal rule (the pleading standard in Walsh) and rejected it).