When expert witnesses are targeted for malpractice by the attorney's client, can experts turn and sue the attorney who hired them? A California appeals court has ruled that they can.
Dismissing arguments that such an action would undermine the attorney-client relationship, the court allowed an expert, and the referral agency that referred him to the attorney, to sue the law firm that retained him for equitable indemnification.
The court concluded that attorneys who are defending against such an indemnity claim will be required to betray the client's confidential communications because the issues in the indemnity matter deal primarily with legal strategy and litigation decision-making.
The malpractice case in question involves the family of a worker killed in an industrial accident. The case was lost by the plaintiff who contended that a defectively designed forklift caused his death. The trial judge entered summary judgment for the manufacturer, largely because he found that the plaintiffs' engineering expert gave contradictory statements about whether the manufacturer violated safety standards.
After the court dismissed the plaintiffs' case, the plaintiffs retained new counsel and filed a malpractice lawsuit against the expert witness and the firm that referred him. In turn, the expert and the referral firm filed cross-complaints against plaintiffs' original law firm, seeking indemnification. The law firm brought a motion for summary judgment on public policy grounds, which the trial court granted. It ruled that the cross-complaints were barred based upon the public policies protecting attorney-client loyalty and confidential client communications.
On appeal, the California Court of Appeal sided with the experts, finding that the public policy considerations regarding the former attorney-client relationship did not outweigh those in favor of allowing equitable indemnification between joint tortfeasors. The court raised a parallel issue of public policy not considered by the trial court. that of protecting the professional interests of all expert witnesses generally to participate in litigation, and the interests of the judicial system in obtaining the assistance of such expertise. Once it found that public policy was not an impediment, the court had little difficulty concluding that the experts' indemnity claims against the lawyers who hired them were permissible.
Specifically, the court determined that experts could not independently communicate their knowledge and opinions to the trial court, and had to act through the intermediary of the counsel who retained them on behalf of the client. Moreover, the court concluded that experts are not involved in legal strategy, but rather supply expertise based on the physical facts of the underlying case, within the applicable legal standards as supplied to them by counsel. This made the experts and the lawyers "concurrently acting litigation participants," who should be permitted to sue for indemnification of professional malpractice damages.
The case is Forensis Group Inc. v. Frantz, Townsend & Foldenauer, 2005 Cal. App. LEXIS 929 (Cal. Ct. App., June 9, 2005).
