the irrebuttable presumption does not apply when an expert changes sides. The court noted that the roles of lawyers and experts are different and that a different rule should apply because experts do not have the same duty of loyalty to clients nor do they have a sustained relationship with the attorneys who hire them. Another California opinion trended against disqualification based on an attorney’s association with an outside party. The court ruled that a plaintiff’s counsel in a class action would not be disqualified for talking with the defendant’s consultant because the defendant was unable to meet his burden of proof that the expert had or would disclose confidential information about the defendant to plaintiff’s counsel. Kane v. Chobani, Inc., N. D. Cal., No. 12-CV-02425-LHK, 8/12/13. Caution should be exercised in relying on this case. Disqualification motions are largely discretionary with the trial court. Many courts opt to place the burden of proof on the would-be disqualified party to disprove receipt of confidential information.
We can reasonably expect there to be future conflict questions raised by attorney associations with outside parties. What will the outcome be when opposing counsel or firms use the same service provider for cloud storage of confidential client information, the outsourcing of discovery document review, or off-shore research services? Changing technologies coupled with a growing willingness of attorneys to seek the disqualification of their opponents make this a topic likely to see additional case law.
*“Ethically Speaking” is available online. The columns from the past two years are available on www.dsba.org. **“Ethically Speaking” is intended to stimulate awareness of ethical issues. It is not intended as legal advice nor does it necessarily represent the opinion of the Delaware State Bar Association. Charles Slanina is a partner in the firm of Finger & Slanina, LLC. His practice areas include disciplinary defense and consultations on professional responsibility issues. Additional information about the author is available at www.delawgroup.com.
MEDIATION/ARBITRATION BAYARD MARIN, J.D., PHD Over thirty five years of civil litigation experience, largely personal injury and medical malpractice. bmarin@bayardmarinlaw.com 302-658-4200
DSBA Bar Journal | September 2013
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