The personal liability of an attorney for expert witness fees in California: Understanding contract principles and agency theory

A paper analyzes under what circumstances an attorney who contractually retains an expert witness may be personally liable to the expert under the law of California. This inquiry necessitates an examination of whether the attorney may avoid personal liability to the expert on the theory that the contract with the expert was made by an agent for a disclosed principal. It also requires an analysis of the California civil code provision that covers an agent's liability to a 3rd party. It is argued that treating an attorney as a principal should be the normative approach to liability. Even if the attorney were characterized as an agent for purposes of retaining an expert, the proper application of the California statute nevertheless can provide a fruitful source of argument to hold the attorney personally liable.