When is an expert retained by a client and unavailable to work for "the opposition." This is an old subject, but one which keeps reoccurring so we will discuss it again. Here are several examples.
In the first case, MEC referred an expert to a client attorney who talked with the exert on the phone and said, "we’ll get back to you." He was not at that time retained. These words, "We’ll get back to you" mean nothing to the expert since most of the time, they never hear from that attorney again,. However, in this case a month or two went by and the expert was contacted by the opposition and retained by them. Then the attorney to whom MEC had referred the expert originally sent him some material to read inferring that he was being retained. Too late. The expert had quite reasonable accepted an offer by someone who paid him a retainer.
An expert is not retained or committed until one of three things occur; a formal contract is entered into (rarely done), a verbal agreement is entered into and action is taken in reliance of this contract or a retainer is paid and accepted. If an attorney discloses information which he considers confidential before one of the above has occurred, he does so at his own risk.
The second situation is one personal to Captain Greiner, the President of MEC. As the individual who refers experts to attorneys on behalf of MEC and one who also does consulting, Captain Greiner has been put in the situation where an attorney on one side calls up and asks for an expert. He discusses the facts of the case with Captain Greiner and usually receives a recommendation for an expert in return. Occasionally, Captain Greiner may gratuitously suggest an approach or an issue the attorney may want to consider. This (the gratuitous comment) is not a paid service of MEC or Captain Greiner unless Captain Greiner is retained. Later, Captain Greiner is contacted and asked specifically to be the expert for the other side.
Where the referred MEC Associate is retained (he works directly for the attorney, not for MEC) AND where MEC accepts payment for the referral, Captain Greiner feels he cannot accept employment as a consultant for the other side. This is founded on ethical considerations.
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