I was once retained as an ethics expert in a big class action in Ocala federal district court, decease where the proposed plaintiff’s attorneys were split into two camps, struggling over which group was better qualified to represent the class action plaintiffs. For this hearing alone, the eight defense attorneys all sat in the jury box, apart from the action because they had no “dog in this fight,” while the two groups of 6-7 plaintiffs’ lawyers sat at the two party tables facing the judge. My client, one of the lawyers seeking the court’s approval to represent the plaintiffs, put me on the stand.
After the judge swore me in, I took my seat in the witness chair on the dais next to his (much higher) podium, and the questioning started. The direct examination was brief. After examining my credentials and obtaining a determination as to my expertise (unchallenged), the lawyer asked a couple of questions to establish the purpose for which I’d been retained and then the ultimate question, what my opinion was regarding whether the other plaintiff’s counsel had engaged in what one might call “bad acts,” what amounted to certain antique causes of action known as champerty and/or maintenance. (They had, by the way.) He then turned the questioning over to the alternate counsel seeking to represent the plaintiffs. After I’d been on the stand for nearly an hour, one of the “opposing” plaintiffs’ counsel cross examining me inquired into details of what I had discussed with a specific former client who had had a case involving similar issues of champerty and maintenance, and what I had advised her to do. My reaction was to wait for someone to object (after all, there were 12 other plaintiff’s attorneys, as well as eight defense lawyers in the courtroom). When no one did, I looked up at the judge and addressed him instead of responding.
“Your Honor, I apologize, but I have to object to the question posed because, to answer it, I would have to violate my client’s attorney/client privilege. And I don’t have her permission to do that.”
He hesitated before commenting “I’ve never had a witness object to a question before, but I sustain Ms. Jenkins’ objection!”