The use of consultants and experts has become routine practice in litigation and is often crucial to the outcome of a matter. Attorneys typically dedicate significant time and resources to selecting and working with consultants and experts. One component of this effort usually involves giving careful consideration to the applicable ethics and privilege rules.
Indeed, when not handled properly, the selection and use of consultants and experts can create unnecessary risks for an attorney (and the attorney’s client). For example, attorneys seeking to strengthen the opinion of a consultant or expert may be tempted to disclose as much information as possible, which in certain jurisdictions can risk waiver of applicable privileges, including the attorney-client privilege and work product immunity.
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