One of the rewarding aspects of practicing in a firm of professionals is the opportunity to seek advice and input from your colleagues. That kind of routine exchange during a brief conversation between law firm partners resulted in the disqualification of one of the attorneys as an expert witness, and the disqualification of his entire law firm from representing one of the parties to a lawsuit.

In X.S. Smith, Inc. v. Giordano, Halleran and Ciesla (N.J. Law Div. April 23, 2010), the plaintiff filed a legal malpractice suit against the defendant law firm based on a commercial real estate transaction the firm had handled for it. Plaintiff retained as its expert Stuart Reiser, Esq. Reiser’s expert report was served on defense counsel at the Bressler, Amery and Ross law firm. The Bressler firm retained Bruce J. Ackerman, Esq. as a defense expert. Upon receipt of Ackerman’s expert report, Reiser revealed to plaintiff’s counsel that he had previously discussed the case with Ackerman when they were both partners at another law firm, Shapiro & Croland. Shortly thereafter, Ackerman left the firm. A timesheet showed a 15-minute conversation during which Reiser consulted with Ackerman about some of the issues in the case.

Based on this contact, plaintiff moved to disqualify Ackerman as the defense expert and Bressler, Amery and Ross as defense counsel. Although Ackerman testified that he had no recollection of the conversation and that any conversation that may have occurred was “off the cuff,” the court reasoned that the information conveyed from the plaintiff to its attorneys and its expert was privileged and confidential. Consequently, when Reiser spoke to Ackerman (then his partner) about the case, this privilege was extended to Ackerman. Based on the confidential information relayed to him, the court disqualified Ackerman as well as Bressler, Amery and Ross, which had received the confidential information from Ackerman.

The X.S. Smith decision demonstrates that sharing confidential information with one’s colleagues within the same firm can have unintended consequences. Given the mobility of professionals today among firms, it is not unusual for those discussions to be used as a basis for disqualifying one of the professionals from a later expert engagement. As X.S. Smith shows, it is irrelevant whether the conflict was known, or even foreseeable, when the communication occurred. The key is whether confidential information was disclosed in the earlier conversation. That determination may often turn on whether corroboration of the communication exists, including in the form of time records, which can be considered to confirm the value of the communication.