Multistate Professional Responsibility Examination (MPRE)Litigation and Other Forms of AdvocacyEasy
A lawyer representing a plaintiff in a medical malpractice case learns during discovery that a key medical expert witness, previously disclosed to the defense, has a minor, non-disqualifying conflict of interest that was inadvertently overlooked. The conflict does not affect the expert's impartiality or the substance of their testimony. What is the lawyer's most appropriate course of action regarding this conflict?
- AImmediately withdraw the expert witness to avoid any appearance of impropriety.
- BAdvise the expert to not mention the conflict during testimony unless directly asked.
- CWait to see if opposing counsel discovers the conflict on their own.
- DPromptly disclose the minor conflict to opposing counsel and the court.
Show answer & explanationAnswer & explanation
Correct answer: D. Promptly disclose the minor conflict to opposing counsel and the court.
Lawyers have a duty of candor toward the tribunal and fairness to opposing party and counsel. Promptly disclosing a known, even minor, conflict of interest demonstrates good faith and fulfills these ethical obligations, preventing potential issues later.
Why the other options are wrong
- A. Withdrawing a key expert unnecessarily harms the client's case and is not required for a minor, non-disqualifying conflict.
- B. Advising an expert to conceal information is unethical and could be considered subornation of perjury if the information is material.
- C. Failing to disclose a known conflict, even minor, risks being perceived as deceptive and could lead to sanctions.
Candor to Tribunal (Disclosure)
Lawyers must be truthful in their statements to the court and opposing counsel, and disclose material facts necessary to avoid assisting a criminal or fraudulent act by the client, or to correct a false impression.
- Duty to disclose material facts to the tribunal.
- Duty to correct false statements of fact or law.
- Applies even if the information is adverse to the client's position.
Memory trick: Truthful Lawyers Always Disclose Known Facts.