Page 22 - Civil Litigation

— identify fn 33 facts or data that the party’s attorney provided and that the expert considered
in forming the opinions to be expressed; or

— identify assumptions that the party’s attorney provided and that the expert relied on in
forming the opinions to be expressed. fn 34 (See Rule 26[b][4][C] of appendix C.)

Engagement Acceptance

Guidance for the acceptance of a civil litigation services engagement is included in the standards, prac-
tice aids, and special reports of the AICPA. However, several areas require special attention as described
in the following material.

Conflicts of interest are incompatible interests between the practitioner and others connected to the civil
litigation services engagement. Before allowing the disclosure of any material facts about a case, the
practitioner should complete a search for conflicts of interest. In connection with this search, the pro-
spective client or client’s attorney should provide the practitioner with the names of the parties and a
brief description of the claims. This typically can be accomplished by asking for a copy of the com-
plaint. In situations where the practitioner deals exclusively with the prospective client’s attorney prior
to engagement, it is recommended that the practitioner meet the ultimate client to establish communica-
tion and service expectations. A conflict of interest exists when a practitioner’s ability to objectively
evaluate and present an issue for a client will be impaired by current, prior, or possible future relation-
ships with parties to the litigation. Conflicts may be legally prohibitive or incompatible from the busi-
ness perspective of the practitioner. Conflicts may include interests between the potential client and at-
torney, the opposing parties and attorney, and the efforts to identify all potentially relevant parties to be
considered during the conflict-checking process. If a conflict of interest exists, the practitioner should
not accept the engagement or, alternatively, should attempt to resolve the conflict, if possible. The par-
ties and entities that cause a conflict of interest for a member practitioner generally should not be dis-
closed to the potential client or others due to professional client confidentiality standards. Legal conflicts
of interest generally preclude the practitioner from accepting the engagement. In certain business cases,
conflicts of interest are known, acknowledged, and waived by the parties; however, the member practi-
tioner, in particular, should exercise caution to avoid improperly disclosing any relationship or service to
others that may violate professional client confidentiality standards. SSFS No. 1 requires the practitioner
to comply with the AICPA’s “Integrity and Objectivity Rule” (ET sec. 1.100.001 and 2.100.001) fn 35
and other specified topics and interpretations contained within the Code of Professional Conduct.

fn 33 Committee notes clarify that this limitation is expressly for the identification of facts and, therefore, additional com-
munications regarding the identified facts or data remain protected.

fn 34 This exception is even narrower, applying only to communications identifying assumptions that the expert actually
relied up. As an example, the committee notes state "general discussions about hypotheticals, or exploring possibilities
based on hypothetical facts, are outside this exception."

fn 35 All ET sections can be found in AICPA Professional Standards .

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