The State Bar seeks public comment on Proposed Formal Opinion Interim No. 20-0001 (Lawyer as Expert Witness).
Deadline: April 15, 2025, 11:59 p.m. (60 days)
Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.
The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with applicable State Bar policy and procedure, the committee shall publish proposed formal opinions for public comment. (See State Bar Board of Trustee Resolutions July 1979 and December 2004. See also, Board of Trustee Resolution November 2016.)
Proposed Formal Opinion Interim No. 20-0001 considers:
The opinion interprets rules 1.4, 1.6, 1.7, 1.9, 1.10, 2.4, 2.4.1, 3.3, 3.7, and 8.4 of the Rules of Professional Conduct and Business and Professions Code sections 6068, subdivision (e) and 6106.
The opinion advises that a lawyer may ethically testify as an expert witness in a matter adverse to a former client provided that the lawyer’s testimony does not (1) injuriously affect the former client in any matter in which the attorney formerly represented the client; (2) disclose information acquired by virtue of the representation which is protected by Business and Professions Code section 6068, subdivision (e) or rule 1.6; or (3) use such information to the disadvantage of the former client. In certain circumstances, however, judicially developed principles of disqualification may prevent a lawyer whose testimony would be permissible under the Rules of Professional Conduct from serving as an expert witness.
The opinion also advises that no ethical principle bars the law firm of a lawyer that has previously testified as an expert witness from subsequently representing a client who is adverse to the party on whose behalf the lawyer previously testified. If the lawyer remains under contractual or other confidentiality obligations stemming from the lawyer’s prior expert role and respecting those obligations would significantly limit the firm’s representation of the firm’s client, then the law firm must obtain the client’s informed written consent prior to the representation under rule 1.7(b). Even if there is no material limitation conflict under rule 1.7(b), the law firm is required to make written disclosure of the lawyer’s continuing legal obligation to the adverse party under rule 1.7(c)(1).
Finally, the opinion advises that a lawyer should carefully consider, in conjunction with law firm management, whether a lawyer can ethically serve as an expert witness against a current client of the lawyer’s law firm in an unrelated matter. Even if a lawyer does not disclose or use confidential information of the law firm’s current client, the potential expert retention may implicate rules 1.4. 1.6, 1.7, and duties of loyalty, for the lawyer, the law firm, or both. Depending on the circumstances, informed written consent under rule 1.7(b), or written disclosure of the relationship under rule 1.7(c)(1), may be required.
At its January 31, 2025, meeting, and in accordance with their procedures, COPRAC tentatively approved Proposed Formal Opinion Interim No. 20-0001 for a 60-day public comment distribution.
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State Bar Standing Committee on Professional Responsibility and Conduct
April 15, 2025, 11:59 p.m.