David Kluft asks: “If an expert “switches sides” but his opinion doesn’t change, should he be disqualified?” —

• “A NJ plaintiff sued an insurance company for wrongly denying his workers compensation claim. The insurance company hired an expert to opine that its claims handler (a separate company) acted reasonably in denying the claim. The insurance company ultimately settled with the plaintiff.”
• “The insurance company then sued the claims handler, which had refused to cooperate in the workers compensation litigation, for indemnification. The claims handler hired the insurance company’s former expert from the workers compensation case as its expert in the indemnification case to give the same opinion: that the claims handler acted reasonably.”
• “The insurance company moved to disqualify the expert. The Court held that the test for disqualification of an expert who ‘switches sides’ is (1) whether it was objectively reasonable for the first party to think a confidential relationship with the expert existed; and (2) whether confidential information was actually exchanged.”
• “The Court held that the expert had ‘switched sides,’ even though his opinion stayed exactly the same. The Court found that it was reasonable to believe the relationship between the insurer and the expert had been confidential even as to the claims handler where the claims handler had not cooperated in the first litigation, and that confidential information (strategies, strengths and weaknesses of the case, etc.) was actually shared. The expert was disqualified.”
• Decision: here.

The Law Journal Editorial Board Opines: “ABA’s Latest Guidance on Withdrawal Motions May Be Unworkable Under NJ Rules” —

• “An application to withdraw as counsel forces the withdrawing lawyer to balance two fundamental ethical rules—the preservation of confidential communications relating to the representation under Rule 1.6 of the Rules of Professional Conduct, and the mandatory and permissive bases of withdrawal under RPC1.16. On Dec. 3, 2025, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 519 that emphasizes the confidentiality component of the balance and lays out what may and may not be said, and the preferred approach.”
• “While addressing the same core issue, New Jersey’s RPC1.6 has certain differences that lead us to view the ABA opinion as unnecessary and inapplicable, if not unworkable, under our current Court Rules.”
• “RPC1.6 prohibits lawyers from disclosing ‘confidential information’ —information relating to the representation of a client—unless a specific exception applies, such as client consent. According to a recent ethics opinion from the American Bar Association, a lawyer’s motion to withdraw as counsel is not permitted to reveal ‘confidential information’ including, for example, information about the client’s failure to pay the lawyer’s bill; that the lawyer and client have a fundamental disagreement; or that the lawyer has a conflict of interest.”
• “Essentially, the lawyer may (1) use personal information unrelated to the representation, (2) secure client’s informed consent to disclosures, or (3) employ the acknowledged permissive disclosures allowed under Rule 1.6, such as to prevent reasonably certain death or substantial bodily harm.”
• “To prevent disclosure of confidential information on a motion to withdraw, Opinion 519 suggests the following steps. First, submit the motion referring only to ‘professional considerations’ or ‘irreconcilable differences,’ without disclosing any further information. Second, if the court advises that further information is necessary, the lawyer should try to persuade the court to rule on the motion as is. Third, the lawyer may disclose confidential information if the court ‘orders’ the lawyer to do so, because ABA Model Rule1.6(b)(6) includes an exception for disclosures made ‘to comply with other law or a court order.’ But even then, the lawyer may disclose confidential information only to the extent ‘reasonably necessary’ to satisfy the needs of the court, preferably in camera or under seal. Fourth, if the court does not ‘order’ the lawyer to disclose but states that the motion to withdraw will be denied unless the lawyer provides more information, ‘the lawyer remains bound by the duty of confidentiality.'”
• Opinion 519 should not be considered when evaluating such motions in New Jersey. First, when confronted with a motion to withdraw with no explanation other than ‘professional considerations’ or ‘irreconcilable differences,’ Opinion 519 imagines that the judge may advise the lawyer that additional information is needed. But we predict that, absent a change to the Rules of Court, most New Jersey judges would simply deny the motion. (See the Appellate Division’s 1994 decision in State v. Johnson, which denied a motion to with draw in part because ‘the attorney did not give the trial court any concrete reasons for requesting the withdrawal, but merely stated that he believed his continued representation of defendant would not provide defendant with effective assistance of counsel and he was ‘not at liberty to disclose the reasons for that’’). Opinion 519 itself acknowledges that some courts expect the lawyer to explain the basis for the motion, and ‘perhaps to do so in significant detail.'”
• “As noted, Opinion 519 would permit disclosure if the judge ‘orders’ it, but not if the judge suggests that she cannot rule on the motion without it. But the difference may be subtle, and we anticipate many real-world scenarios in which the lawyer will be hard-pressed to determine whether disclosure has been ‘ordered’ or merely suggested. Opinion 519 also notes that even when ordered, disclosure should preferably be made in camera or under seal, but in New Jersey, that would probably require a court order as well, given the absence of any Court Rule or RPC authorizing a lawyer to unilaterally file material in camera or under seal. At each of the four steps, Opinion 519 envisions some sort of dialogue between the lawyer and the motion judge. With far less oral argument, such opportunity for the dialogue that Opinion 519 envisions are unlikely in New Jersey.”
• “A fundamental difference in NJ RPC 1.6 also militates against the ABA’s approach. Opinion 519 is premised upon the explicit exception in Model RPC 1.6(b)(6) which permits a lawyer to reveal confidential information ‘to the extent the lawyer reasonably believes necessary … to comply with other law or a court order.’ But New Jersey did not adopt the ‘court order’ exception; rather, our RPCs provide that a lawyer may reveal such information ‘to the extent the lawyer reasonably believes necessary … to comply with other law.’ Many other states similarly lack that exception. One wonders what the ABA’s Standing Committee would suggest to lawyers in New Jersey (or other such states) seeking to withdraw.”
  Both Model Rule 1.6 (a) and its New Jersey corollary provide that disclosure is permitted when ‘impliedly authorized in order to carry out the representation.’ Opinion 519 assumes, without analysis, that a disclosure in furtherance of a motion to withdraw is not authorized by that exception, even when Rule 1.16(a) requires the lawyer to seek to withdraw. But the phrase ‘in order to carry out the representation’ is quite broad. It presumably covers the disclosure of confidential information (ex parte, if appropriate) in connection with, for example, (1) discovery disputes over alleged privileged information, (2) motions to disqualify a lawyer due to an alleged conflict of interest, and (3) settlement and mediation conferences, both private and through the court. To be sure, a motion to withdraw is likely to be opposed by the client. (If the client consents to withdrawal, a motion is often unnecessary.) But a motion to withdraw may still be part of ‘carry[ing] out the representation,’ especially if the motion is required by RPC 1.16(a)(1) (mandating withdrawal if the representation ‘will result in violation of the [RPCs] or other law’).”
• “Opinion 519 acknowledges that courts have taken varied positions on the issue. Opinion 519, with minimal justification, takes the strictest view: unless an explicit exception applies or the client consents, a lawyer may not reveal ‘information relating to the representation’ in support of a withdrawal motion.”
• “We subscribe to a broader view—minimal disclosure of information relevant to a motion to withdraw is implicitly permitted by RPC 1.6. Our courts have heard and decided many such motions to withdraw and, as far as we are aware, no New Jersey court has suggested that such disclosure is improper.”