From: XXX
Sent: Monday, November 01, ____ 1:23 PM
To: ALL-LIT
Subject: POLICY RE ENGAGEMENT AS EXPERT WITNESS ON ATTORNEY'S FEES
From time to time, Firm lawyers agree to serve as testifying expert witnesses in support of another firm's application for attorney's fees in a litigated matter. We often handle the assignment without charge as a favor to the requesting lawyer; other times we charge a fee for our services. In any circumstance in which we serve as a testifying expert witness on the issue of attorney's fees, however, we need to take certain precautions to avoid conflicts of interest or claims of conflict of interest. These same precautions can and should be applied in other situations where a Firm lawyer serves as an expert witness.
First, perform a conflict check before undertaking the assignment to insure that the party against whom your testimony will be offered is not a firm client.
Second, prepare a new matter memorandum identifying the "client" as "Expert Witness - Your Name," identifying the retaining law firm and its client as "supportive parties," and identifying the opposing law firm and its client as "opposing parties." Even though the testifying expert witness engagement does not create an attorney-client relationship between you and the retaining firm or its client, the firm's conflict database needs to reflect the fact that you were hired to testify as an expert witness and the names of the law firms and clients involved in the underlying litigation.
Third, enter into a written agreement with the retaining law firm and its client expressing the terms of your engagement as an expert witness. A sample letter agreement is attached. Use this agreement whenever possible, but if circumstances require you to negotiate a different agreement, it must include the following points and be signed by the retaining law firm and its client:
(1) You are being retained as a testifying expert witness, not as a lawyer, and the assignment does not create an attorney-client relationship between you and the retaining law firm or its client;
(2) You will not be provided any information about the subject of the underlying litigation that the retaining law firm or its client expects you to maintain in confidence; rather, you will only be provided information that you are free to disclose in explaining the basis for your expert opinion; and
(3) Your service as an expert witness will not be asserted as the basis for any future claim of conflict of interest.
Assisting other lawyers by serving as fee experts showcases the expertise of our lawyers, fosters our relationships with other lawyers, and can lead to business referrals. If we take the precautions outlined above, we can accept these assignments without creating risks of conflicts of interest or unfounded claims of conflicts of interest.
Thank you for your cooperation. Please let me know if you have any questions.
PRMS #18A- policy re engagement as expert witness on attorney_s fees - Law Firm 1