Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Once A Witness is Designated to Testify or Testifies, Information Once Privileged May No Longer Be Privileged

Following trial and appeal, one cause of action remained to be tried on remand in Deluca v. State Fish Co., Inc. (June 27, 2013) 2013 Cal. App. LEXIS 515.  Plaintiff’s counsel informed defendant’s counsel that he would be using, as an expert witness, an expert who had testified on behalf of the defendant in the prior trial.  Defense counsel objected on the ground that the expert possessed confidential attorney-client and work product information, learned from defendant and moved to disqualify the plaintiff's counsel from further representing the plaintiff.  The trial court granted the motion and disqualified plaintiff's counsel.

The court of appeal reversed the disqualification order because the expert no longer possessed confidential information.  The court confirmed that “[a]lthough there is no statutory provision defining waiver of the work product protection, waiver ‘is generally found under the same set of circumstances as waiver of the attorney-client privilege—by failing to assert the protection, by tendering certain issues, and by conduct inconsistent with claiming the protection.'”  (Id. at * 33.)  

Thus, “[o]nce a testifying expert is designated as a witness, the attorney-client privilege no longer applies, ‘because the decision to use the expert as a witness manifests the client's consent to disclosure of the information.’  Similarly, when an expert witness is expected to testify, the expert's report, which was subject to the conditional work product protection, becomes discoverable, as the mere fact that the expert is expected to testify generally establishes good cause for its disclosure.”  (Id. at *31.)  Therefore, because defendant’s expert had already testified, the expert was “not in possession of any confidential information and there is, therefore, no reason that opposing counsel cannot retain the expert.”  (Id. at *36.) 

The decision also noted other contexts where both privileges would be waived including when “a client calls that party's attorney to testify at trial to information the attorney could have only learned through the attorney-client privilege” and “when an agent of the attorney is to testify to matters that he could only have learned because of the attorney-client relationship.” (Id. at *30.)  

Given attorneys’ exacting duties in maintaining attorney client confidences, careful analysis is required when calling witnesses to testify who may be or have been privy to confidential communications.

-Andrew A. Servais

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis.  Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**