Legal Question in Legal Ethics in New Jersey
Lawyer represents the franchisee in franchise dispute. Franchisee is alleged to have been underreporting its weekly sales. Franchisee also has claims against franchisor for mispresentation and breach of contract. During the litigation, franchisor retains expert witness to opine on issues pertaining to underreporting weekly sales. Lawyer for franchisee moves in limine to bar the expert report based on various deficiencies as inadmissible net opinion. The motion is never decided and the parties settle dispute prior to trial.
Several months after the settlement, franchisor approaches lawyer (who previously represented franchisee) about bringing a lawsuit against its expert witness due primarily to problems with its report and the fact that the expert concealed the fact that it was subcontracting out the investigative work to another company when it promised to peform the work internally in its original contract. The franchisor's position is that it could not have gone to trial without a competent expert report and that the expert misrepresented the nature and quality of the services it would provide--and wants to sue the expert for breach of contract and consumer fraud.
Would it be a conflict of interest under the model rules of professional conduct or NJ rules of prof. conduct for the franchisee lawyer to now take the franchisor's case against its expert?
1 Answer from Attorneys
The representation poses a risk of a conflict - for example, should this new information have been reveled in discovery by the franchisor? Perhaps the failure to do so would lead to a motion to reopen the settlement.
There are other issues, too, but the answers are fact-sensitive. At the very least a waiver would be needed from the former client.
Attorneys have consulted with me on these and similar issues. If you care to do, please contact me to arrange for a consultation.
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