Legal Ethics Opinion 1493

Confidences and Secrets: Confidentiality of Information of Expert
Witness Engaged by Attorney's Former Client/Employer 

You have presented a hypothetical situation in which Attorney A
was previously employed by the Federal Government, during which
time, he used B, a contractor, as an expert witness in a case
against C.  You advise that litigation in the case is ongoing,
and the Federal Government continues to use B as an expert
witness.  Attorney A now works for D.  D is being sued by E, a
private party, who has called B to testify as an expert. 

You indicate that Attorney A has been asked by D whether A can
disclose to D information learned by A as to the strengths and
weaknesses of B, as well as other aspects of how he works, for
use in the litigation involving E.

You have asked the committee to opine whether, under the facts of
the inquiry, such disclosure regarding B would violate Attorney
A's duty of confidentiality or any other ethical obligations owed
to his former employer/client, the Federal Government. 

The appropriate and controlling Disciplinary Rule related to your
inquiry is DR 4-101, which provides, generally, that an attorney
may not reveal or use a confidence or secret of his client,
except under certain enumerated circumstances.

The committee is of the opinion that unless A would be revealing
confidences or secrets of his former employer/client, the Federal
Government, it would not be improper for A to disclose
information about the strengths and weaknesses and work habits of
his former employer's expert witness.  The committee is of the
view that the information to be disclosed is not a confidence or
secret under the Disciplinary Rule, since it constitutes only a
subjective assessment of an expert witness' demeanor and not
information gained in the professional relationship.  Under the
facts you have provided, the present litigation is not related to
any past litigation which involved the expert witness' testimony. 
Thus, the committee finds no ethical duty owed eiter/client or
the expert witness which would inhibit the attorney from
conveying his impressions about the expert witness's strengths,
weaknesses, or work habits to the new employer who may confront
the expert witness as to the current client, E.

Committee Opinion
October 19, 1992