by Robert Ambrogi - Editor
BullsEye Newsletter: July 2005
When an expert witness is targeted for malpractice, can the
expert turn and sue the lawyer who hired him? Under some circumstances,
he can, says a California appeals court.
Dismissing arguments that such an action would undermine the attorney-client
relationship, the court allowed an expert – and the agency that referred
him – to sue the law firm that retained him for equitable indemnification.
"We do not believe that attorneys who are defending against such an indemnity
claim will be required to betray the client's confidential communications," the
court said, "because the issues in the indemnity matter deal primarily with
legal strategy and litigation decision-making."
The malpractice case arose after relatives of a worker killed in an industrial
accident lost their lawsuit claiming that a defectively designed forklift caused
his death. The trial judge entered summary judgment for the manufacturer, in
part 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, they 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.
In fact, said the court, the case 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.
"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,"
the court said. "Experts were not involved in legal strategy,
but rather supplied 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 court said.
The case is Forensis Group Inc. v. Frantz, Townsend & Foldenauer, 2005 Cal.
App. LEXIS 929 (Cal. Ct. App., June 9, 2005).
Click
here for full text of this opinion.
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