The problematical role of the legal ethics expert witness

INTRODUCTION Scholars in the field of the law governing lawyers - legal ethics, to speak more traditionally and economically - are quite divided in their willingness, or at least their apparent eagerness, to be engaged by parties to disputes as expert witnesses. One very distinguished scholar has

acknowledged appearing ten to twenty times a year over a five-year period, at fees ranging up to $500 an hour,1 and others also appear frequently,2 sometimes in opposition to the first scholar.3 This willingness to testify is not universal among legal ethics scholars. There are eminent professors who adamantly refuse to testify for a fee,4 or testify rarely,5 or have never testified though they are often asked to do so.6 On the few occasions when I personally have been asked, I have felt uncomfortable about it, and found reasons to decline.7

Those scholars who do testify, by which I mean to include accepting employment to express impartial opinions in various other forms,8 have done so in a wide variety of legal contexts: in civil actions by erstwhile clients for legal malpractice,9 in disciplinary proceedings against lawyers for ethical violations,10 on motions to disqualify counsel for conflicts of interest,11 and in efforts by government agencies and injured private parties to hold lawyers responsible for the misdeeds of their clients, 12 to cite just the most frequent contexts. The decisionmakers they have addressed include judges, lay juries, panels of lawyers, government officials, and indeed the "court" of public opinion. And the issues to which their testimony is directed can range from almost pure questions of law,13 to questions of the most appropriate legal characterization of fact situations,14 to questions whether a particular lawyer exercised reasonable care, skill, and diligence. 15