– Conflict of Interest , Client, Defense, Plantiff

Q. I examined a man for the defense and felt that the injuries sustained, including a brain injury and PTSD were directly caused by the auto accident in which he was involved. I called the lawyer who retained me to discuss my opinions.  He thanked me, said he did not want a report, and paid my bill.  Now, a year later, the plaintiff’s lawyer called me, is aware of my seeing his client and that no report was produced (information provided by defense lawyer to plaintiff lawyer). The plaintiff’s lawyer would like me to testify on behalf of his client.  What do I do?
A.   Sadoff:  Examining for the defense is different than examining for the plaintiff. As plaintiff’s expert, you have a duty to the man and to his attorney.  When examining for the defense, no such duty exists except to minimize harm by being respectful and seeking truth and justice as outlined in the AAPL Ethical Guidelines.  You should not respond or agree to testify for the plaintiff without first consulting the defense lawyer who originally retained you.  He or she may wish you not to testify and may seek prohibition from the judge.  The plaintiff attorney may subpoena you, but the defense attorney may go to court to quash the subpoena.  The court may order you to testify in which case you are protected by the court’s immunity.  Always seek protection before knee-jerk response.  Always consult the retaining attorney for advice.