Expert Witness

EVEN JUDGES DON’T KNOW EVERYTHING: A CALL FOR A PRESUMPTION OF ADMISSIBILITY FOR EXPERT WITNESS TESTIMONY IN LAWYER DISCIPLINARY PROCEEDINGS

A lawyer charged with a disciplinary violation is in a precarious position. Not only has the lawyer been accused of being “unethical,” but he or she faces prosecution by an adversary typically staffed with professional prosecutors who are familiar with the system’s often-arcane procedures and backed up by substantial financial resources.[2] In cases where the accusations involve serious misconduct the lawyer may face suspension or disbarment from practice if found guilty.[3] Yet, because lawyer discipline is not considered a “criminal” proceeding, the full panoply of due process protections provided to a criminal defendant are not available to the lawyer accused of unethical conduct.[4]

Added to these daunting circumstances is the fact that judges or hearing panels before whom discipline cases are tried often are not experts in legal ethics. They may have no actual experience in practicing the law of lawyering[5] and their formal “training” may consist of preparing for the Multistate Professional Responsibility many years ago, or sitting through some continuing legal education sessions that touch on the topic.

In order to mount an effective defense against the disciplinary charges, an accused lawyer may want to introduce expert testimony on his or her behalf. Will such testimony be admitted? Unfortunately for the accused lawyer, the answer is not at all clear. The relatively few jurisdictions that have directly addressed the question have taken differing approaches, and most jurisdictions apparently leave the question to the discretion of the judge or panel trying the case.

This article argues for the adoption of a presumption that expert testimony offered by an accused lawyer in a lawyer discipline case is admissible. Lawyers facing charges that could result in the loss of their livelihood – in essence, “capital punishment” in the economic sense – should be afforded every reasonable opportunity to defend themselves. Routinely admitting expert testimony relating to the alleged offenses will be a strong step in the right direction. Reasons supporting the adoption of such a presumption are discussed more fully in Section IV., infra, and include the nature of the ethics rules, the characteristics of the disciplinary process, and the harmony of such a presumption with accepted evidentiary practice.

Expert witness testimony in a disciplinary case can be used for a variety of purposes. Sometimes it is used for clearly factual purposes, typically relating to physical evidence in the case. An example of such a use is to identify that the accused lawyer (called the “respondent” in disciplinary parlance) signed a questioned document or was otherwise connected to improperly signed documents.[6] Another common use is to demonstrate that the accused suffered from some type of condition or disability and to tie that condition to the lawyer’s culpability for the offense, usually in an effort to mitigate disciplinary sanctions.[7] This article, however, is not concerned with those uses of expert testimony. Rather, the focus is on expert testimony of the type at issue in the cases outlined in Section III., infra. That testimony concerns issues such as the way that an ethics rule is understood by practitioners, the reasonableness of a lawyer’s conduct in light of the terms of the relevant ethics rules, and whether the lawyer violated the rules as charged.

A “not-so-hypothetical” problem is used in Section II. to set the stage for our discussion. That is followed in Section III. by a review of the relevant case law from throughout the United States. The reasons in favor of a presumption of admissibility are considered in Section IV., and a description of how the presumption would operate in practice is presented in Section V.

A look at a not-so-hypothetical situation will put the problem in perspective. Assume that you are a lawyer who sometimes teaches a professional responsibility course at the local law school. You have served on your state bar Ethics and Lawyer Advertising Committee, have represented lawyers in state bar disciplinary proceedings, have consulted with and advised law firms on ethics issues, have written articles on ethical topics, and have testified as an expert witness in legal malpractice cases and lawyer disqualification hearings. In fact, early in your career you prosecuted disciplinary cases for your state bar.

One of your former students, who is now a practicing lawyer, has come to you with a problem. The lawyer is the subject of several complaints filed with the state bar. The bar recently made a finding of probable cause and has instituted formal disciplinary proceedings against your former student, the respondent. The formal complaint charges in separate counts that the respondent violated your state’s versions of American Bar Association Model Rules of Professional Conduct 1.15(d)[8] and 7.1.[9]

Regarding the first count, the respondent was representing a client in a personal injury matter. She was the client’s second lawyer in the case. When the tortfeasor’s insurance company offered the policy limits ($50,000), the respondent advised the client to accept and the client agreed. The respondent received the proceeds and placed them in her trust account. The respondent paid the outstanding expenses and satisfied liens (colloquially called “letters of protection”) that she had issued to medical providers with the client’s written authorization. As the respondent was preparing to disburse the remaining proceeds to her client, a medical provider called her and demanded to be paid. The respondent did not have a copy of the letter of protection that the chiropractor claimed to be relying upon. The chiropractor told the respondent that the letter had been issued by the client’s first lawyer. The client told the respondent that “it was possible” that he had authorized the letter of protection but that he did not remember doing so. In any event, the client did not want the respondent to pay the medical provider. The respondent’s attempts to negotiate an agreeable settlement were unsuccessful, so she ended up depositing the money in the court registry and filing an interpleader action. The chiropractor produced a copy of the letter of protection (even though he had not previously provided it to the respondent, despite her requests) and the court released the funds to him. The chiropractor then filed a complaint with the state bar alleging that the respondent had an ethical obligation under rule of professional conduct 1.15 to promptly pay her and that the interpleader action was unnecessary.

The second count of the disciplinary complaint concerns a statement on the respondent’s web site. The home page of her web site contains a link titled “Click here to see our success stories” that leads to a page truthfully listing favorable settlements and verdicts that the respondent actually has obtained for clients. All of the information is true, but there is no explanation or disclaimer to the effect that “individual results may vary.” The state bar, reacting to a complaint filed by one of the respondent’s competitors, has alleged that the information on the respondent’s web site is misleading and therefore improper under rule of professional conduct 7.1. Specifically, the bar has alleged that the statements in question are misleading because they raise “unjustified expectations” about results the respondent could achieve for potential clients.[10]

The disciplinary charges are anything but minor to your former student, the respondent. Allegations involving trust funds are always serious, and an additional problem is the fact that the respondent has had disciplinary sanctions imposed against her on several prior occasions – including an unrelated advertising violation. With her record, being found guilty of the new charges is almost certain to result in a suspension from practice. As a solo practitioner, a suspension of any length will have devastating consequences to her financial situation.

Your former student would like to hire you to testify as an expert witness for her at her disciplinary hearing. Based on your substantial experience, you could truthfully testify to things such as:

Normally you require a substantial retainer (including a hefty minimum engagement fee) for work as an expert witness. You would like to do the same in this case but, being the ethical lawyer that you are, you do not want to accept the money from the former student without a reasonable probability that your testimony will be admitted in the case. Will the judge permit your expert witness testimony?[11]

Considering the large number of disciplinary complaints filed against lawyers throughout the United States,[12] there is relatively little reported case law directly addressing the admissibility of expert witness testimony in lawyer disciplinary proceedings. These decisions range from cases concluding that such evidence is admissible, to cases holding that expert testimony is not required, to cases stating that the testimony is not admissible in that case but might be admissible in others, to cases purporting to announce that such testimony is never admissible. As will be shown, in the cases in the latter category either no rationale is given for the decision or the rationale offered is faulty.

Courts that have declined to admit expert testimony appear to base their decisions on two reasons. The primary reason is that expert testimony expressing an opinion on “the ultimate issue” in the case – that is, whether the respondent violated the rules as charged – somehow invades the province of the trier of fact (a judge or hearing panel).[13] In actuality, this fear is inconsistent with and has been rejected by the Federal Rules of Evidence.[14] A second reason, which is perhaps the most serious one in the eyes of the disciplinary authorities, is the fear that routinely allowing respondents to introduce expert testimony in their defenses will drive up the disciplinary agencies’ costs of prosecution.[15]

Cases in a number of jurisdictions do not directly speak to the admissibility question but simply indicate that expert testimony was admitted at the disciplinary hearing. Although these cases do not shed much light on the precise question of admissibility, their facts and circumstances provide some examples of areas in which expert testimony has been useful. Some of these cases are briefly discussed below as well.[16]

Decisions in three jurisdictions (California, Nebraska, and Texas) have expressly concluded that expert testimony is admissible in lawyer disciplinary proceedings. Expert testimony appears to be regularly used in California disciplinary cases.

The most expansive use of expert witness testimony in lawyer disciplinary proceedings appears to be in California. Perhaps this is not surprising, given the large number of California lawyers[17] and the state’s highly developed disciplinary system.[18] The use of expert testimony in California disciplinary cases is not uncommon, even when such testimony goes to the “ultimate issue” in the case. California decisions have concluded that “ultimate issue” testimony is admissible.

In the Matter of Harney[19] concerned a respondent lawyer who was charged with collecting an illegal fee, obtaining client and court consent to the fee by recklessness or gross neglect, and failing to reveal to client’s conservator and the court material information about statutory limits applicable to the fee.[20] The respondent’s expert testified that respondent “was innocent of misconduct.”[21] The State Bar Court rejected this testimony, but in a footnote made this statement about admissibility of expert testimony in disciplinary proceedings:

At the hearing below, Respondent presented the expert testimony of Professor Erwin Chemerinsky of the USC School of Law. Chemerinsky had taught a variety of courses, including constitutional law and professional responsibility. Chemerinsky opined that respondent's fee was not a contingency fee and that respondent did not commit any of the misconduct charged. Chemerinsky's testimony concerned questions of law on the ultimate issues before the hearing judge. Although Chemerinsky could opine on ultimate issues (Evid.Code, § 805), those questions are ultimately for the independent decision-making of the State Bar Court and Supreme Court.[22] (Emphasis added.)

The California Evidence Code section referenced by the court provides: “Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.”[23] This provision corresponds to Federal Rule of Evidence 704(a), which states: “Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”[24]

The approach expressed in Harney is the approach that best serves respondent lawyers and the disciplinary system. Expert testimony should be freely admissible, even if it goes to the issue of whether the respondent violated the rules as charged. The weight, if any, to be given to such testimony should be left to the trier of fact.

Subsequent California cases have followed the Harney approach. In one such a case the respondent was charged with misappropriating client funds and failing to properly account for funds. On review in the State Bar Court, respondent argued that the testimony of his expert, a certified bankruptcy lawyer, “provided uncontradicted evidence that respondent’s conduct in representing TRC [his client] was within the standard of care of a bankruptcy practitioner and therefore reasonable.”[25] The court disagreed, noting that the witness may have been qualified to testify to ultimate issues within his expertise – bankruptcy – but that respondent failed to establish that the witness “had any special knowledge of or experience with State Bar disciplinary matters, or the rules and regulations governing professional responsibility.”[26] Accordingly, the court accorded the witness’s testimony “minimal weight, particularly since this case does not involve the standard of care of bankruptcy practitioners, but rather involves the failure to adhere to the ethical duties and fiduciary obligations to maintain client trust funds under the rules and statutes governing professional conduct.”[27] Similarly, in a reinstatement case[28] the court noted that it was permissible for a witness to testify concerning the ultimate issue – the lawyer’s qualifications for reinstatement – although the actual decision on the issue was reserved for the court.[29]

Nebraska has also concluded that an expert witness may testify as to the ultimate issue in a disciplinary case. In State ex rel. Nebraska State Bar Ass’n v. Miller,[30] the respondent lawyer was charged with violating disciplinary rules and statutes concerning: filing an unnecessary lawsuit from the motive of personal interest, in order to increase his fee allegedly due under the contract;[31] deceitful acts with intent to deceive a court or a party to an action;[32] conduct involving dishonesty, deceit, or fraud;[33] charging a clearly excessive fee;[34] and failing to properly preserve funds belonging in part to a client (by removing a disputed fee from his trust account).[35] Respondent had represented a mother and her son in attempting to obtain refund of amounts overpaid by insurers to hospital that cared for the son. Hours after respondent’s partner was notified by the hospital that the hospital and the insurer had reached agreement on a refund, respondent filed suit against hospital.[36] After receiving the settlement proceeds, respondent deposited them in his trust account and withdrew money to pay herself the full amount of fee he claimed was due, despite the fact that the clients disputed his right to this fee. The clients hired another lawyer to represent them in the fee dispute with the respondent.

In a very unusual turn of events, at the disciplinary trial before a referee the lawyer who was representing respondent’s former clients in the fee dispute was permitted to testify, over respondent’s objection, as an expert witness regarding the propriety of respondent’s fee. On review in the state supreme court, respondent contended that the referee erred in allowing the lawyer to testify. The supreme court rejected this contention, concluding that expert witness testimony is admissible in disciplinary proceedings within the referee’s sound discretion.[37] The testifying lawyer had been properly qualified as an expert, and his “opinion with respect to the reasonableness of the fee is highly relevant because that fee is a major issue in this disciplinary case.”[38] Any possible bias of the expert witness – who, after all, represented the respondent’s former clients in their fee dispute – went to the credibility of the expert’s testimony, not its admissibility.[39]

The Supreme Court of Nebraska recognized that expert testimony as to the reasonableness of a fee is “highly relevant” and should be admitted in a disciplinary case involving charges of improper fees.[40] Similarly, expert testimony should be routinely admitted in connection with the alleged violations of many other rules that have elements of reasonableness or that can only be interpreted and applied in light of external standards.[41]

Although expert witness testimony is not required in Texas disciplinary cases,[42] a recent Texas decision permitted an expert witness to testify to the ultimate issue in a case in which the respondent was accused of violating the lawyer advertising rules. The respondent in Rodgers v. Comm’n for Lawyer Discipline[43] was charged with improper use of a trade name, misleading advertising, failing to include required disclosures, and failing to file ad with bar’s Advertising Review Committee. The case was tried to a jury,[44] which found respondent guilty of the charged violations.

Respondent appealed, contending that the trial court abused its discretion in admitting the testimony of state bar’s expert witness. The expert, who was the chair of the State Bar’s Advertising Review Committee, testified that in her opinion respondent violated the rules as charged.[45] Respondent claimed on appeal that the bar’s expert “used the wrong legal standards to determine whether violations occurred, that she was unqualified, and that her testimony is unreliable.”[46] Evaluating the trial court’s decision in light of Texas Rule of Evidence 702,[47] the Court of Appeals rejected these assertions and concluded that the trial court did not abuse its discretion in admitting the testimony.[48]

Four jurisdictions (Texas, North Dakota, Massachusetts, and Vermont) have held that expert testimony is not required in lawyer disciplinary cases, while case law from one jurisdiction (Florida) indicates that expert testimony may be necessary to prove at least some types of charges. The general proposition that expert testimony is not required is a correct one. Lawyers who are accused of ethical breaches should be able to freely introduce expert testimony in their defense, but should not be required to do so.

Texas appellate courts have stated that expert witness testimony is not required in disciplinary proceedings. Hawkins v. Comm’n for Lawyer Discipline[49] concerned a lawyer who had been appointed to represent a criminal defendant. Despite his efforts, the lawyer could not convince the court to relieve him of the appointment. At that point the lawyer wrote to client saying that the client no longer had a lawyer, and then failed to appear for docket call – which resulted in the client getting a notice of intent to revoke bond.

After the client filed a complaint with the state bar, the lawyer was accused and found guilty of violating the rule against neglect of client matters[50] and the rules governing withdrawal from representation.[51] On appeal respondent argued that the evidence was insufficient to prove the violations “because the Commission failed to introduce expert testimony on the application of the Rules and the standard of care required.”[52] This argument did not prevail. The appeals court stated that “interpretation of the Rules, like interpretation of statutes, is a matter of law for the court. [Footnote omitted.] Accordingly, no expert testimony on the interpretation of the Rules was required.”[53]

The court, however, did not discuss the critical distinction between not requiring expert testimony and not permitting it.[54] The court’s pronouncement that interpretation of the ethics rules is a matter for the court might help explain why expert testimony is not required, but it would fall far short as a rationale for not permitting it. As in California, the ultimate decision as to whether a disciplinary violation occurred must be made by the court (or hearing panel), but this does not mean that the court cannot benefit from expert assistance. It also overlooks the fact that many of the ethics rules contain elements that are difficult to interpret or apply without reference to some external standard or practical experience.[55]

The Hawkins court, of course, did not address whether it was error for the trial court to permit the introduction of expert testimony. Respondent, in fact, did succeed in having such evidence admitted. He “called several attorneys who testified that in their opinions, the Rules could be read to require Hawkins to act in the manner he did.”[56] The appeals court, however, was of the view that such evidence was not helpful to respondent’s case.[57] Although the expert testimony might not have been helpful in Hawkins’ case, the court’s holding did not preclude the possibility that such testimony could be useful in other cases. As noted, expert testimony – even that going to the ultimate issue – was admitted in a subsequent case.[58]

The Supreme Court of North Dakota also has concluded that expert testimony is not required in disciplinary actions. The most recent such case is In re McKechnie.[59] The respondent was accused of letting a statute of limitations run in a client’s potential employment discrimination claim, thereby violating the rule requiring adequate communication with clients.[60] A hearing panel recommended that respondent be found guilty and suspended from practice for thirty days.[61]

On review in the supreme court, respondent argued that there was no evidence in the record to support a finding that he violated the rule because Disciplinary Counsel had “presented no expert evidence of the applicable standard of care to support the charges.”[62] In turn, Disciplinary Counsel asserted that the hearing panel erred in admitting the testimony of respondent’s expert, who opined that respondent’s actions “met the applicable standard of care under the circumstances”[63] The court thus faced two questions: Was expert testimony required? Was it prohibited? The court squarely answered the first issue in the negative but was equivocal on the second.

The court concluded that expert testimony was not required. It distinguished between a legal malpractice case and a disciplinary case.[64] In the former expert testimony is needed to help the trier of fact determined what the standard of care is and whether the lawyer met it. In the latter, according to the court, the rules themselves set the standard and so no interpretation is necessary. In this regard the court’s decision was consistent with its earlier case, In Re Howe.[65] The flaw in the court’s reasoning is that many of the rules of professional conduct do require explication or interpretation in light of what may be reasonable under the circumstances. In fact, twenty-nine of the seventy-five ABA Model Rules of Professional Conduct that are likely to be charged in disciplinary cases contain an element of “reasonableness.” Furthermore, thirty-five of the seventy-five rules that are likely to be charged require reference to some external standard in order to be understood or applied in a particular factual situation.[66]

Regarding whether it was error to admit the expert testimony, the McKechnie court ruled that the testimony of respondent’s expert was not necessary to aid the hearing panel to understand the evidence or to determine a fact in issue.[67] The court did not hold that it was error for the hearing panel to admit the testimony at the trial. Because it deemed the evidence unnecessary, however, the supreme court elected to ignore it in deciding the case.[68] The court’s action in ignoring expert testimony in the record as unnecessary was very similar to that taken in a prior case, In re Boulger.[69] These cases stand for the proposition that expert testimony may be admitted in a lawyer disciplinary case, even though it is not required, when it will be useful to the trier of fact.

Massachusetts has held that expert testimony is not required in disciplinary proceedings. In re Eisenhauer[70] concerned a respondent lawyer who represented an elderly couple. After the wife died, the respondent obtained a durable power of attorney from the husband, who had fallen ill. The respondent also drafted a trust for husband in which respondent was named trustee, with a power of veto over the naming of any successor trustee. When the husband died, the respondent became the lawyer for the wife’s estate, lawyer for the husband’s estate, and trustee of the trust. Respondent allegedly paid himself a large portion (almost forty percent) of the total assets under his control to himself and did not accurately account for the assets, nor did he make distributions to the beneficiaries. He was charged with violating the rules against deceitful conduct[71] and excessive fees.[72] A hearing committee found respondent guilty; an appeal panel agreed, and found additional violations; the Board of Overseers adopted the appeal panel’s report; and a single justice of Massachusetts Supreme Court accepted the Board’s recommendation and suspended respondent for four years.[73]

On appeal to full state supreme court, respondent contended that the evidence against him was insufficient to support the guilty finding. He apparently contended that expert testimony concerning the fees was required, but supreme court did not agree: “Nor, as the respondent contends, is expert testimony required to prove an ethical violation. Matter of Saab, 406 Mass 315, 329, 547 N.E.2d 919 (1989).”[74]

Interestingly, the Saab case that the court cited as precedent for its holding does not compel such a result. In Saab the respondent was charged with violations that included incompetent representation of a client in an appeal of a divorce. Respondent contended to the supreme court in the disciplinary case that expert testimony was required in order to prove the charges against him. The court did not agree, quoting from a previous case, Fishman v. Brooks:[75] “Expert testimony concerning the fact of an ethical violation is not appropriate . . . ” There are two problems with the court’s reliance on Fishman as support for its decision. First, Fishman was a legal malpractice case, not a lawyer disciplinary case. Second, and perhaps more importantly, the Saab court’s quote from Fishman was incomplete and, as a result, inaccurate for the purpose cited. The Fishman court went on to say, regarding expert testimony in a legal malpractice case: “Of course, an expert on the duty of care of an attorney could properly base his opinion on an attorney’s failure to conform to a disciplinary rule.”[76]

Vermont is the fourth jurisdiction to hold that expert testimony is not required in discipline cases. In re Sinnott[77] indicates, however, that such testimony will be admissible in an appropriate case. The respondent lawyer was accused of charging an unreasonable fee[78] (i.e., with charging a fee for representing client in consumer debt reduction matter but doing no legal work of value for client). The hearing panel found him guilty. Before the state supreme court, respondent argued that “disciplinary counsel did not meet his burden of showing a violation by clear and convincing evidence because he did not produce evidence corresponding to each of the eight factors” listed in the fee rule. Apparently respondent contended that expert testimony was always required in unreasonable fee cases. Noting that respondent made this claim without citation to authority, the court stated:

While it may be true that there are reported professional responsibility cases that rely on expert testimony, we have not previously established that expert testimony is required to meet the burden of production to show a violation. We decline respondent's invitation to do so here. As in other areas of law, expert testimony may be used to assist the trier of fact determine a fact in issue or understand evidence that is outside the expertise or perception of the fact finder. See V.R.E. 702. The facts of this case were so straightforward that an expert would do little to enhance the panel's understanding of the case. Though this will not always be the case in professional responsibility cases generally, or in cases brought under Vermont Rules of Professional Conduct 1.5(a), it is all the more reason to allow the unique circumstances of each case to dictate the kind and quantum of evidence needed to show a violation.[79] (Emphasis added.)

The court’s statement clearly indicates that expert testimony is admissible, though not required, in appropriate disciplinary cases.

Authority from one jurisdiction, Florida, can be read as indicating that expert testimony actually may be required in an excessive fee case. The Florida Bar v. Barley[80] dealt with a lawyer who represented a client in a commercial dispute. The client gave the lawyer about $76,000 to fund a potential settlement. The lawyer placed the funds in his trust account but subsequently began to systematically withdraw them without client consent. He also billed and received from the client about $62,000 in fees during a three-month period. The client complained to the state bar, which charged the lawyer with violating the trust accounting rule[81] and the rule against “clearly excessive” fees.[82] The referee conducted a trial and recommended that the respondent be found guilty.

Respondent petitioned for supreme court review, arguing that the state bar failed to prove its claim on the excessive fee charge. The supreme court agreed, stating:

Under rule 4-1.5(b) there are numerous factors that can be considered in determining what constitutes a reasonable fee, including the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skills requisite to perform the legal services properly. See Florida Bar v. Carlon, 820 So.2d 891 (Fla.2002) (approving a referee's recommendation that Carlon charged a clearly excessive fee where the Bar presented expert testimony that Carlon's charging a client $3,340.10 for extracting names from Martindale-Hubbell constituted sheer overreaching). In the instant case, the Bar presented no expert testimony or any evidence, other than [the client] Mr. Emo's testimony, challenging the legality or the reasonableness of the fees [respondent] Barley charged. Moreover, the record shows that Barley consistently provided Mr. Emo with billing statements which detailed the work Barley did and the hourly rate he was charging. As Barley argued, Mr. Emo consistently paid these statements without challenging the reasonableness of the fees. Although we find Mr. Emo's testimony reliable, in and of itself, his testimony does not constitute competent, substantial evidence that Barley's fees were clearly excessive. Thus, we reject the referee's recommendation that Barley be found guilty of violating rule 4-1.5(a).[83] (Emphasis added.)

Other Florida cases have admitted expert testimony in various situations, but no reported cases expressly discuss the admissibility issue.[84]

Courts in two jurisdictions (Colorado and Oregon) have upheld the exclusion of expert testimony in the specific case before it, but left open the possibility that such testimony could be admitted in a case involving different facts.

The Supreme Court of Colorado has indicated its approval of expert witness testimony for at least some purposes. In re Attorney D[85] dealt with a respondent lawyer charged with violating the rule against conduct involving dishonesty, misrepresentation, deceit, or fraud.[86] Respondent had business relationships with an insurance company and was appointed to act as an arbitrator in cases involving that insurance company. He was accused of misrepresenting (in one situation) and not disclosing (in other situations) his connections with insurance company to the parties involved in the arbitrations.

The case came before the state supreme court through a discovery dispute. Respondent sought to compel the deposition of, and extensive document production, from the lawyer who reported him to the bar (the “reporting lawyer”). The reporting lawyer, joined by Attorney Regulation Counsel, moved for a protective order. The Presiding Disciplinary Judge (“PDJ”) partially granted the motion but allowed the deposition to go forward, finding some of the requested documents to be “potentially relevant to what he referred to as the ‘standard of care or standard of practice’ for arbitral disclosures, on the grounds that such a standard might relate to a mitigating factor.”[87] Attorney Regulation Counsel then petitioned for relief from the supreme court.

The Supreme Court of Colorado held that “the PDJ abused his discretion in fashioning the protective order,” concluding that the PDJ “misperceived the relevance of the opinion and prior conduct of a lay witness concerning a standard of care or practice for arbitral disclosures.”[88] The court noted that, while the conduct of a respondent lawyer or other lawyers, or their personal interpretations of the ethics rules,[89] are not themselves relevant under the ABA Standards for Imposing Lawyer Sanctions,[90] there are situations in which expert testimony could be relevant:

Expert testimony concerning practice in a particular area of the law might be admissible under some circumstances, to assist the board with such things as the practical implications of ethical rules, the difficulty of their application, or even the way they are commonly understood among practitioners, but the conduct of other individual attorneys in similar circumstances will rarely if ever be relevant to establishing either the occurrence of a violation or the propriety of a sanction. The fact that other particular attorneys may have engaged in the same practice as the respondent, even if those attorneys are numerous, amounts to neither justification nor mitigation for violation of an ethical standard.[91] (Emphasis added.)

The court, however, went on to point on that a respondent’s conduct in conformity with a “commonly-accepted practice,” apparently as shown by expert testimony, may show a lack of improper intent or motive:

[T]he fact that an attorney is acting in conformity with a commonly-accepted practice may very well be probative of his lack of improper motive or intent. Conforming to an accepted practice, either from a belief in its validity because of its general acceptance or merely as a matter of routine, although not dispositive, provides some explanation for the conduct apart from dishonesty or selfishness. But the question whether a practice is standard or accepted in the professional community is a matter of specialized knowledge or opinion. It is not rationally based on the perceptions of witnesses without specialized training or knowledge but arises only from particular experience with and knowledge of the legal community and area of practice. See CRE 701-702.[92] (Emphasis added.)

The court thus effectively recognized the value of expert testimony concerning possible mitigation of sanctions. The same type of testimony, of course, can be valuable in helping a court or hearing panel determine whether a rules violation occurred. Attorney D. explicitly recognizes that testimony on areas such as difficulty of rules’ application or the way rules are commonly understood may be helpful to the trier of fact, and that such testimony should come from someone qualified as an expert in the area.[93]

Oregon is the second jurisdiction that has upheld the exclusion of expert testimony in a particular case while leaving open the possibility that it could be admissible under different circumstances. This position was taken in a 1990 case, In re Leonard.[94] Subsequent Oregon cases have made it clear that expert witness testimony may be admitted, even when it appears to go to the ultimate issue in the case.[95]

In Leonard, the respondent was accused of violating the rule prohibiting lawyers from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation by unilaterally making changes to a lease agreement and then misrepresenting the importance of the changes with the intent to have the opposing parties agree to them without first consulting their counsel.[96] At the trial of the disciplinary case before a hearing panel, respondent attempted to offer what was called an “expert opinion” from an experienced lawyer who had served for fifteen years on the state bar’s Legal Ethics Committee regarding whether “the conduct of the Accused violated the disciplinary rules.”[97] The hearing panel excluded the proffered evidence, found respondent guilty, and imposed a public reprimand. On review in the state supreme court, respondent argued that the proffered evidence was admissible under Rule 702 of the Oregon Evidence Code.[98] The court concluded that the evidence was properly excluded:

This court previously has expressed its reservations about the propriety of this kind of testimony in disciplinary cases. See In re Brandsness, 299 Or. 420, 434, 702 P.2d 1098 (1985). This case shows why. If the expert testimony were offered to explicate some external standard of actual practice, it might be admissible. However, DR 1-102(A)(3) does not involve such a standard. The evidence therefore amounted to nothing more than an oral brief as to why one particular construction of the governing disciplinary rule would not be violated by a particular hypothetical set of facts. The Accused was able to make the same legal arguments through counsel, and did so. The evidence was not admissible.[99] (Emphasis added.)

The court’s pronouncement in Leonard was directly undercut by its subsequent case of In re Claussen.[100] Claussen concerned a respondent who was charged with violating the same misrepresentation rule that was at issue in Leonard by allegedly misrepresenting that federal bankruptcy law entitled his client to the cash surrender of an insurance policy. Both the state bar and the respondent introduced expert testimony relating to the charges – specifically, whether respondent’s characterization of what the law permitted was correct and whether the failure to mention the bankruptcy court’s oral pronouncement was a material misrepresentation. Contrary to the court’s dicta in Leonard, admission of the testimony shows that whether conduct is a “misrepresentation” truly may depend on the standards of actual practice. It also shows that whether conduct is “illegal or fraudulent” depends on what the law allows, and that expert testimony may be helpful in this area.

Other Oregon cases subsequent to Leonard in which expert testimony was admitted include In re Eadie[101] and In re Eakin.[102]

Courts in two jurisdictions (Illinois and Indiana) have upheld the exclusion of expert testimony and have purported to declare in those cases that such evidence is simply not admissible in lawyer disciplinary actions. A close look at these cases shows, however, that a rule of broad exclusion in every disciplinary case is not warranted and is unsupportable.

In a case on the books for about a quarter-century, In re Masters,[103] the Illinois Supreme Court concluded that proffered expert testimony was properly excluded. The respondent was charged with advising a client to comply with an extortion demand and assisting the client in doing so. At the hearing respondent proffered the testimony of two experts (law professors) “in which the professors analyzed the charges against respondent and by way of response to hypothetical questions concluded that his conduct constituted neither a crime nor a violation of a canon or rule of ethical conduct.”[104] Disciplinary counsel objected, and the hearing panel sustained the objection and excluded the testimony.

On review the supreme court agreed with the hearing panel that the testimony was unnecessary to its disposition of the case:

The hearing panel found no fault with the qualifications of the witnesses but refused to admit the testimony on the ground that it considered itself to be a body of experts and well able to resolve the issues before it. The panel stated that the standards to be applied in disciplinary cases are those standards of conduct acceptable to members of the bar in general rather than standards acceptable to a small group of lawyers who hold themselves ‘beyond and above the level of the Bar, in general, in the matter of professional conduct.’[105] (Emphasis added.)

Contrary to its apparent intent, the panel’s statement actually demonstrates the value of expert testimony in a disciplinary case. How can a small panel (or a single judge) presume to have an intimate understanding of all of the many “standards of conduct acceptable to members of the bar in general”? It should be obvious to any experienced lawyer that, for example, concepts of a reasonable fee, or competent representation, or necessary disclosure of confidences, are understood differently by lawyers in different practice specialties.

Revealingly, the court’s opinion also supports the hearing panel’s decision for another, more fundamental reason: the fear of driving up prosecution costs. The hearing panel had given as an additional reason for exclusion of the testimony “that expert testimony would place an excessive and unnecessary economic burden on both sides in disciplinary matters.” This argument, while perhaps appealing at one level, is both inaccurate and insufficient as a ground for preventing a respondent from mounting a full defense that includes the introduction of expert testimony.[106]

But the supreme court in Masters did not stop at simply agreeing that the excluded testimony was unnecessary. It seemed to stake out a position against the use of expert testimony in any disciplinary case. Respondent cited – to no avail – to two Illinois disciplinary cases in which expert testimony apparently had been permitted.[107] The court stated that, although expert testimony had been admitted in those cases, the issue of admissibility was not before the court. The cited cases “are not, as contended by respondent, authority for the proposition that when the ethical problem under consideration is unusual and fairly debatable expert testimony concerning the canons is admissible.”[108] Rather, in the court’s estimation, opinions offered for the purpose of establishing “the meaning of the disciplinary rules and the ultimate conclusion that no provision of the Code had been violated” was not an appropriate subject of expert testimony.[109]

Masters has been cited in connection with the admissibility of expert testimony in discipline matters by only one Illinois case, In re Chatz.[110] There the supreme court upheld a hearing board’s decision not to admit proffered expert testimony in disciplinary case concerning lawyers’ practices as to compliance with election laws (respondent was accused of improper loans to judges). Yet, elsewhere in its opinion the court stated that, although a respondent’s intent is irrelevant in determining whether he or she violated the rule, it is a factor in determining the appropriate sanction.[111] It therefore seems odd for the court not to recognize the value that the proffered testimony concerning common understanding or practices among attorneys would have regarding an appropriate sanction. Perhaps the concern of the court and the disciplinary agency (which in many states, though not Illinois, are arms of the supreme court) really was with the additional costs of prosecution that supposedly would be engendered by allowing expert testimony.

Indiana, like Illinois, has painted with a broad brush regarding the admissibility question. In re Keller[112] concerned respondent lawyers who were charged with violating the lawyer advertising rules[113] by running television ads suggesting that insurance companies would settle claims just because respondents’ law firm was involved. A hearing officer conducted an evidentiary hearing and then recommended dismissal of the charges. The Disciplinary Commission petitioned the state supreme court for review.

At the hearing below respondents had attempted to introduce expert testimony regarding the interpretation, application, and constitutionality of the rules in question.[114] The hearing officer excluded the proffered testimony. Respondents argued to the supreme court that this exclusion was error, but the court sided with the hearing officer’s decision:

We deny the respondents' petition and uphold the hearing officer's exclusion of this testimony. The Constitution of the State of Indiana vests this Court with exclusive jurisdiction in matters involving the admission and discipline of attorneys. Ind.CONST., art. VII, Section 4; Matter of Kesler, 272 Ind. 161, 163, 397 N.E.2d 574, 575 (1979). The testimony of expert witnesses on the subject of the practice of law is not proper evidence, as it is the province of this Court to determine what the practice of law is. See Matter of Perrello, 270 Ind. 390, 386 N.E.2d 174, 179 (1979).[115] (Emphasis added.)

The court’s sweeping statement that expert testimony “on the subject of the practice of law” was not required by the authority it cited in support of the statement (Matter of Perrello), not consistent with its prior decisions, and failed to recognize that the court’s exclusive authority to regulate the practice of law does not require the court to disallow testimony otherwise permitted under rules of evidence just because it might somehow relate to “the practice of law.”

Perello[116] was an original proceeding in the supreme court concerning allegations that a suspended lawyer was continuing to practice law in violation of the supreme court’s suspension order. The respondent wished to have four experts testify that the business and practice ends of a law practice were distinct and that “the business end of the practice was not the practice of law as contemplated in the suspension order.”[117] The court excluded the testimony, stating that “[i]t is the province of this Court to determine that the practice of law is, and the opinions of experts on the subject are not proper evidence.” Perello is distinguishable from Keller for at least two reasons. First, the dispute in Perello actually did precisely concern what the “practice of law” was – respondent had been ordered to cease practicing law and was accused of violating this order. Keller dealt with lawyers who were accused of violating lawyer advertising rules, which have certain factual aspects (e.g., whether statements might be viewed as misleading). Second, Perello was an original proceeding before the supreme court. In contrast, disciplinary cases originate and are tried in a lower tribunal, such as before a judge or hearing officer. While a state supreme court may be able to claim that it does not need any help in interpreting and applying the disciplinary rules because it is indeed the ultimate authority, that argument certainly would not apply to a hearing panel or judge hearing the matter at the trial level.[118]

Furthermore, other Indiana cases appear to be at odds with Keller in admitting expert testimony. Matter of Hailey[119] was a lawyer discipline case in which the respondent was accused of violating various rules including the prohibition on unreasonable fees.[120] Respondent had settled a client’s case for a lump sum payment plus a series of future payments. Issues in the discipline case included the present value of the future payments and how that value should be determined. The hearing officer admitted testimony by respondent’s expert concerning the present value. On review of the hearing officer’s recommendations Disciplinary Counsel apparently did not raise the issue of admission of the expert testimony, and the supreme court did not discuss the admissibility issue in its opinion. Comparing the issue in Hailey to the issue in Keller, one might ask why expert testimony concerning reasonableness of a fee is admissible, but testimony concerning whether an ad might be misleading is not. There is no meaningful distinction.[121]

Reported cases indicate that at least sixteen jurisdictions have admitted expert testimony in lawyer disciplinary cases, although the admissibility of the testimony was not an issue in the appellate opinions. The jurisdictions are Arizona, District of Columbia, Florida, Iowa, Kansas, Louisiana, Maryland, Montana, New Mexico, New York, Ohio, Oklahoma, South Dakota, Tennessee, Washington, and Wisconsin. These cases do not contribute much to the discussion of the specific evidentiary issue of admissibility. They do demonstrate, however, that such testimony has been deemed admissible in disciplinary actions involving alleged rules violations regarding conduct relating to: handling (or mishandling) client funds;[122] standards of competent representation;[123] fees;[124] dishonesty, deceit, fraud, or misrepresentation;[125] and conflicts of interest.[126]

The above review of extant case law clearly demonstrates the bewildering lack of predictability – sometimes even within the same state – facing someone, like our not-so-hypothetical respondent, who would like to defend against charges of unethical conduct through the use of expert testimony. A lawyer facing these charges, brought to bear by a disciplinary agency often employing professional prosecutors who are familiar with the intricacies of specialized procedural rules, would be able to level the playing field somewhat if he or she was aided by a presumption that the expert witness testimony would be admissible.

There are a number of compelling reasons supporting a presumption of admissibility for expert testimony in lawyer disciplinary proceedings. The nature of the ethics rules themselves present many opportunities for helpful explication through expert testimony. The unique nature of lawyer disciplinary proceedings calls for such a particularized approach to admissibility. On the flip side, there are no convincing reasons opposing such a presumption.

The nature of ethics rules shows that they are a fertile ground for testimony by experts on legal ethics and law practice. In fact, many of the rules of professional conduct by their own terms require reference to standards of conduct or concepts outside of the rules themselves in order for the rules to be adequately understood or applied – or for a disciplinary authority to properly conclude that they were violated.

A review of the ABA Model Rules of Professional Conduct makes this point convincingly. The author examined the rules and determined[127] that there are seventy-five (75) rules that are regularly used by lawyer disciplinary agencies when charging respondents with unethical conduct. Of these seventy-five rules, fifty-six (56) of them – or seventy-five percent (75%) – can fairly be read as either containing an element standard of “reasonableness” or reference to some “external standard” of practice in order to be understood and applied. These rules are listed below:

Twenty-nine of the seventy-five rules, or thirty-nine percent (39%), include an element of reasonableness:

1.1 (competence) – requires “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation”

1.2(c) (limiting scope of representation) – lawyer “may limit the scope of the representation if the representation is reasonable”

1.3 (diligence) – “lawyer shall act with reasonable diligence and promptness in representing a client”

1.4(a) (communicating with clients) – lawyer shall “reasonably consult with the client about the means by which the client’s objectives are to be accomplished”; lawyer shall “promptly comply with reasonable requests for information”

1.4(b) (explaining matters to clients) – lawyer shall explain matters “to the extent reasonably necessary to permit the client to make informed decisions regarding the representation”

1.5(a) (reasonable fees) – lawyer shall not agree for, charge or collect “an unreasonable fee or an unreasonable amount for expenses”

1.5(b) (communicating basis or rate of fee to client) – scope of representation and basis or rate of fee must be communicated to client “before or within a reasonable time after commencing the representation”

1.6 (confidentiality and disclosure of client information) – lawyer must believe that a permissive disclosure of confidential information is “reasonably necessary”

1.7(b) (ethically representing a client notwithstanding concurrent client conflict of interest) – whether a lawyer could “reasonably believe” that he or she could competently represent each client notwithstanding existence of conflict

1.8(a) (business transactions with clients) – whether terms of transaction are “fair and reasonable to the client” and disclosed in manner that could be “reasonably understood” by client

1.8(b) (using or revealing confidential information) – relating to exceptions to confidentiality rule (1.6), whether a lawyer’s belief that a permissive disclosure is necessary is “reasonably necessary”

1.8(f) (third party fee payment) – relating to exceptions to confidentiality rule (1.6)

1.8(h) (settling or limiting malpractice claims) – whether client has been given “reasonable opportunity” to seek advice of independent counsel

1.9(c) (opposing former client and using confidential information) – relating to exceptions to confidentiality rule (1.6)

1.13(c) (organization as client; reporting outside corporation) – whether lawyer’s belief that a permissive disclosure is “reasonably necessary”

1.13(f) (organization as client; identification of client to corporate constituents) – whether lawyer “reasonably should know” that corporation’s interests are adverse to constituent’s

1.14(b) (client with diminished capacity) – reasonableness of protective action for client

1.16(d) (termination of representation; protection of client) – extent to which protective steps are “reasonably practicable”

1.18(b) (prospective clients; confidentiality of information) – disclosure of confidential information (see 1.9)

3.4(d) (fairness to opposing party and counsel; frivolous discovery requests, failure to comply) – not making “reasonably diligent effort” to comply with discovery request

3.6 (trial publicity) – whether lawyer “reasonably should know” that statement will be disseminated and have potentially prejudicial effect

4.1 (truthfulness in statements to others) – reasonableness of lawyer’s belief that disclosure not permitted under confidentiality rule (1.6)

4.3 (dealing with unrepresented persons) – whether lawyer “reasonably should know” that unrepresented person misunderstands lawyer’s role

5.1 (responsibilities of partners, managers, and supervisory lawyers) – whether efforts to ensure that firm has in place measures to encourage ethical compliance are “reasonable”

5.2 (responsibilities of a subordinate lawyer) – whether supervisory lawyer’s resolution of a question was “reasonable”

5.3 (responsibilities regarding nonlawyer assistants) – whether efforts to ensure that firm has in place measures to encourage ethical compliance are “reasonable”

5.7 (responsibilities regarding law-related services) – whether a service “might reasonably be performed” in conjunction with provision of legal services

8.1 (bar admission and disciplinary matters) – whether information is protected by confidentiality (see 1.6)

Thirty-five of the seventy-five rules, or forty-seven percent (47%) require reference to some external standard (i.e., one outside of the rules themselves):

1.2(a) (allocation of authority between lawyer and client) – distinction between “objectives” and “means”; whether certain actions would be understood as “impliedly authorized” in particular situation

1.2(d) (assisting a client in criminal or fraudulent conduct) – whether lawyer in that area of practice would understand something to be “criminal or fraudulent”

1.5(d) (contingent fees prohibited in criminal and certain domestic matters) – practice in matrimonial law community regarding interpretation of this unclear rule

1.6 (confidentiality and disclosure of client information) – whether a disclosure is “impliedly authorized”

1.7(a) (concurrent conflict of interest) – whether in particular type of representation there “is a significant risk that the representation of one or more clients will be materially limited by a lawyer’s responsibilities to” other clients, former clients, or lawyer’s personal interest

1.8(f) (third party fee payment) – “interference with lawyer’s independence of professional judgment or with the client-lawyer relationship”

1.9(a) (opposing former client in same or substantially related matter) – whether matters should be considered “substantially related”[128]

1.10 (imputed disqualification) – existence of conflict of interest under rules 1.7 or 1.9

1.11 (imputed disqualification rules for government lawyers) – sufficiency of “screening” measures

1.12 (imputed disqualification for former judge/arbitrator/mediator) – sufficiency of “screening” measures

1.13(b) (organization as client; reporting up the corporate ladder) – what actions are “reasonably necessary” to protect client

1.14(b) (client with diminished capacity) – necessity of protective action for client

1.15(a) (safekeeping property; separate account, complete records) – adequacy of trust accounting records

1.15(d) (safekeeping property; interests of others) – what is considered an “interest” that must be protected

1.16(a) (termination of representation; required) – when withdrawal is required by rules of professional conduct or law

1.16(d) (termination of representation; protection of client) – extent to which retention of papers/property is “permitted by other law”

1.18(c) (prospective clients; adverse representations) – whether matters should be considered “substantially related” and whether information could be “significantly harmful” to prospective client

1.18(d) (prospective clients; screening to prevent disqualification) – sufficiency of “screening” measures

3.1 (meritorious claims) – practice in a particular area, regarding whether there was a “basis in law” or a good-faith argument for reversal/modification/extension of existing law

3.2 (expediting litigation) – whether expediting was “consistent with the interests of the client”

3.3 (candor toward the tribunal) – sufficiency of “reasonable remedial measures” to remedy fraud on the court

3.4(c) (fairness to opposing party and counsel; disobeying obligation under rules of tribunal) – common understanding of court rules in practice

3.4(d) (fairness to opposing party and counsel; frivolous discovery requests, failure to comply) – whether discovery request has legitimate practice purpose

4.1 (truthfulness in statements to others) – whether a particular fact is material

4.2 (communication with persons represented by counsel) – whether a communication is “authorized by law”

4.4 (respect for rights of third persons) – legitimate purposes of actions taken by lawyer

5.2 (responsibilities of a subordinate lawyer) – whether question of professional duty is “arguable”

5.4(a) (professional independence of lawyer; fee sharing) – whether a fee is a “legal fee” particularly in light of growth of lawyers’ involvement in law-related businesses

5.6(a) (restrictions on right to practice; restrictive employment agreements) – whether a provision actually operates to restrict lawyer’s practice

5.6(b) (restrictions on right to practice; restrictive settlement agreements) – whether a provision actually operates to restrict lawyer’s practice

7.1 (communications concerning a lawyer’s services) – whether a communication is misleading

7.2 (advertising) – whether something given for recommendation is “something of value”

7.3 (direct contact with prospective clients) – understanding of “prior professional relationship”

8.4(d) (misconduct; conduct prejudicial to administration of justice) – whether, or how, conduct would be prejudicial to administration of justice

Additionally, the value of expert testimony to the trier of fact becomes clear when one recognizes that most lawyers and judges are not experts in professional ethics. The practice of law has become increasingly specialized, and most practitioners have their hands full just keeping up with their own particular area of practice. Legal ethics has become a private practice specialty area, as the establishment of groups such as the Association of Professional Responsibility Lawyers indicates.[129]

Authorities interpreting ethical regulations have become more numerous and, at the same time, more difficult to access.[130] The increasing specialization in this area has led many bar organizations to set up processes whereby practitioners can obtain written[131] or oral[132] advisory opinions concerning application of the ethics rules to their contemplated conduct. Why do bar organizations devote their limited resources to this service? Because it is needed, of course. These services are an admission that, while all bar members must comply with the ethics rules, few have such a firm command of the rules that they can confidently apply them in any circumstance that might arise in the course of a lawyer’s practice. It is evident that a certain level of interpretation is required to apply the rules of professional conduct, which are designed to be general in nature, to the myriad of factual situations that a practitioner might face.

It simply is unrealistic to expect that every lawyer on a disciplinary hearing panel, or every judge[133] assigned to serve as a referee, is fully versed on the intricacies of legal ethics law. Perhaps that is why the Federal Rules of Evidence permit triers of fact to hear the opinions of experts with “specialized knowledge” in the relevant field.[134]

It should also be noted that expert testimony routinely is used in connection with motions to disqualify lawyers and law firms in litigation. These disqualification matters most often turn on interpretation and application of the conflict of interest rules – the very same rules that are at issue in lawyer discipline cases. Expert witness testimony is common in disqualification cases.[135] Expert testimony also is used in medical and other professional disciplinary proceedings, which often are based on alleged violations of regulations or statutes.[136]

B. The Nature of the Disciplinary Process Supports a Presumption of Admissibility

The unique nature of lawyer disciplinary proceedings calls for a specialized approach to the admissibility of expert testimony. Lawyer disciplinary actions typically are considered neither civil nor criminal in nature; many courts have labeled them “sui generis.”[137] This is because their primary purpose is not to punish the lawyer, but to protect the public.

Because lawyer disciplinary cases are not “criminal” in nature, the full panoply of due process protections available in criminal cases does not apply throughout a lawyer disciplinary prosecution – despite the fact that the practical consequences are often more severe that the punishment would be in a criminal prosecution for the same conduct, and that many disciplinary prosecutions can result in imposition of essentially a “capital punishment” in the sense of finances and ability to practice the lawyer’s livelihood. For example: the notice requirements in disciplinary cases may not be as stringent as those in criminal cases;[138] there is no right to appointment of counsel;[139] there is no right to a jury trial;[140] the concept of double jeopardy does not apply;[141] and the Fifth Amendment right against self-incrimination may be limited in disciplinary proceedings.[142] Even though in some discipline systems the investigatory and adjudicatory functions of the state disciplinary agency are combined in a single body, this has been held not to violate due process requirements.[143]

Disciplinary trials can involve two distinct stages. A hearing is held for the purpose of determining whether the respondent is guilty or innocent of the ethical breaches charged. Then, if the respondent is found guilty, a hearing is held for the purpose of determining the appropriate sanction. Expert testimony may be useful at both stages. It should be apparent that even if testimony is not deemed helpful to the trier of fact regarding guilt or innocence, that testimony may be quite relevant at the sanction stage. The Illinois Supreme Court acknowledged this in In re Chatz.[144]

Finally, a presumption of admissibility would add uniformity to the process of lawyer discipline throughout the country. Injecting consistency into the state-by-state lawyer regulatory scheme is vitally important because of another unusual feature of lawyer discipline – the concept of “reciprocal discipline.” Each state disciplinary system employs reciprocal discipline.[145] Under the rubric of reciprocal discipline, a lawyer found guilty of an ethics violation in one state is subject to discipline for that same conduct in any other state in which the lawyer is also admitted to practice. A guilt finding and the imposition of a sanction in one state is conclusive proof of the violation for purposes of imposing discipline in other states in which the offending lawyer is licensed; the matter cannot be re-litigated in the other states.[146] Assume that a lawyer is licensed in State X and State Y. State X typically does not permit the use of expert witness testimony in disciplinary proceedings, while State Y routinely permits its use. If the lawyer is found guilty of misconduct in State X, that finding will be conclusive for purposes of reciprocal discipline in State Y – regardless of whether the lawyer could have introduced expert witness testimony that would have been extremely helpful to his or her case (had the case only been brought in State Y instead). In other words, the lawyer’s fate rises or falls on the approach taken by the first state to discipline him or her.

C. A Presumption of Admissibility is Consistent with Accepted Evidentiary Practice

A presumption of admissibility would be quite consistent with the accepted evidentiary practice in lawyer discipline cases. Typically the rules of evidence are applicable in discipline cases, but not necessarily in the same manner that they apply in civil or criminal cases. Often the rules are applied in a relaxed or modified manner befitting the “sui generis” characterization of discipline cases.[147]

A presumption that makes expert testimony more easily and more consistently admissible may be a relatively novel approach that has no apparent counterpart in evidence law. The presumption, however, would not be inconsistent with the use of expert testimony that is already permitted by the Federal Rules of Evidence. Expert testimony in the form of an opinion may be admitted when it will be helpful to the trier of fact:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.[148]

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.[149]

It has been stated that doubts about expert testimony should be resolved in favor of admissibility.[150] Despite this principle and the broad language of Rule 704, some courts have concluded that it is improper to admit expert testimony that offers a legal conclusion.[151] The reason often given for excluding such testimony is that it would usurp the role of the trial court as the jury’s sole source of instruction as to the law.[152] This reasoning, of course, completely loses its force when applied to lawyer disciplinary proceedings because these are bench trials (with the exception of Texas). Texas appears to be the only jurisdiction that permits discipline cases to be tried to a jury – yet, ironically, Texas has permitted expert testimony on the “ultimate issue” of whether a lawyer’s conduct violated the ethics rules as charged.[153]

A presumption of admissibility would help standardize decisions on the question, which currently are very dependent on the views of the particular judge or hearing panel assigned to the respondent’s case. In light of the unusual nature of discipline cases (e.g., bench trials, the informal application of rules of evidence, limited due process rights, the spectre of reciprocal discipline in a state having very different procedural rules but with no opportunity to re-litigate the underlying issues) it seems that a presumption that expert testimony on behalf of the respondent is admissible is entirely consistent with, if not required by, notions of fundamental fairness.

As discussed above, there are numerous reasons that militate in favor of a presumption that expert testimony offered by respondents is admissible in disciplinary proceedings. There are no compelling reasons against such a presumption.

Two rationales are typically used to justify exclusion of expert testimony. One is that the testimony would invade the province of the trier of fact – essentially, that the referee or hearing panel does not need someone to help them determine whether an ethics rule has been violated. The other is that anything that might serve to expand the use of expert witnesses by respondents will dramatically increase the disciplinary agency’s cost of prosecuting its cases. Neither of these purported justifications withstands scrutiny.

The former rationale fails for a variety of reasons, as explained supra.[154] The latter rationale fails for two very basic reasons. One, it simply is not true. Under the procedural rules governing the prosecution of discipline cases in almost every jurisdiction, the disciplinary agency is entitled to recover its costs (and, in some jurisdictions, attorney fees) from a respondent who is found guilty.[155] In stark contrast, in only a handful of jurisdiction is the successful respondent authorized to recover costs from the disciplinary agency.[156] Two, a respondent will not be willing to hire and pay an expert witness unless the respondent reasonably believes that doing so will materially benefit his or her defense.

How would a presumption of admissibility actually work in our not-so-hypothetical situation? Recall that the respondent is charged with violating two rules of professional, 1.15(d)[157] (not “promptly” delivering to a third party funds that the third person “is entitled to receive”) and 7.1[158] (making a misleading communication concerning her services).

If respondent wishes to introduce testimony from a qualified expert witness in defending these charges, there should be a presumption that the testimony is admissible. This means that, once the witness has been qualified, the witness’s testimony will be declared admissible unless the disciplinary agency objects and can bear its burden of defeating the presumption.[159] In order to defeat the presumption, the disciplinary agency should have burden of showing: (1) that the testimony not relevant, or is otherwise improper under the jurisdiction’s counterpart to Federal Rule of Evidence 403;[160] and (2) the testimony would concern solely the application of a rule that had no element of reasonableness, no possible reference to external standards of practice, and no possible use in mitigation.[161]

If the respondent chooses not to introduce expert testimony, the presumption of admissibility should not apply to testimony of experts proffered by the disciplinary agency. Their testimony should be subject to the general standards set by Federal Rules of Evidence 702 and 704. The reason for not applying the presumption in situations where the disciplinary agencies initiates the use of experts is again based on fundamental fairness: the agency controls the progress of the prosecution; the agency already bears the burden of proving the case, and is not required to use expert testimony in order to do so;[162] and the agency should not be permitted to drive up the respondent’s defense costs through the one-sided use of experts, especially since most cost-recovery disciplinary procedure rules do not authorize cost recovery by respondents.[163]

In our not-so-hypothetical, all of the potential areas of the expert testimony fall within the parameters of the presumption and therefore should be deemed admissible. Both rules have components of reasonableness or call for reference to external standards. Additionally, in the unfortunate event that the respondent is determined to be guilty as charged, the testimony would be useful in mitigation.

Today’s practice environment is full of potential ethics pitfalls for even the most conscientious lawyer. The governing rules continue to change and become more complex: the ABA Canons of Ethics were in place from 1908 to 1970; the Canons were replaced by the Code of Professional Responsibility from 1970-1983; the Code was in turn replaced by the Rules of Professional Conduct, which took effect in 1983 but were substantially revised in 2002. A lawyer – often a solo or small-firm practitioner – who is charged with professional misconduct faces as an adversary a disciplinary agency that is experienced, organized, and often well-funded. Consequences of being found guilty of misconduct can include suspension or disbarment from practicing one’s livelihood. Added to these concerns is the fact that the judge or hearing panel before whom the case is tried may not be intimately familiar with the particular ethics rules or how they are interpreted in different areas of practice.

Many of the rules of professional conduct contain elements of reasonableness or require reference to external standards of practice in order to be properly understood and applied. A lawyer charged with misconduct may find it potentially helpful, though probably costly, to retain an expert witness who would testify favorably to the lawyer’s case. The accused lawyer should be able to know that his or her expert will be permitted to testify. There should be a presumption that the testimony presented by the respondent’s expert will be admissible. This presumption will aid in leveling the playing field upon which so much rests for the respondent. The result will be a fairer process, more informed decisions, and ultimately a better disciplinary system.

[1] Associate Dean for Information Resources and Professor of Law, Thomas Goode Jones School of Law, Faulkner University (effective June 2005). J.D., University of Texas 1984; M.L.I.S., Florida State University, 1996; B.S., Florida State University, 1977.

[2] Bar prosecutions typically are financed by funds collected from lawyers by a state supreme court or other state body, or appropriated from the general budget of the state. Of 53 jurisdictions reporting, 11 have their lawyer discipline systems funded through the legislature, 21 are funded by supreme court dues or fees assessments, and 21 are funded through bar association dues. American Bar Association Center for Professional Responsibility, Survey on Lawyer Discipline Systems 2002 (Chicago, 2003), chart VI. Some of the “bar associations” that are the source of operating funds actually are “unified” bars; that is, bars to which lawyers are required to belong in order to be licensed to practice in the state. Such associations perhaps may be more accurately described as “compulsory” bars. See Smith, Bradley A. and Allan Falk, The Limits of Compulsory Professionalism: Does a Unified Bar Make Sense for Michigan, < http://www.mackinac.org/article.asp?ID=247> (last visited December 16, 2004).

[3] See generally, American Bar Association, ABA Standards for Imposing Lawyer Sanctions (Chicago, 1992).

[4] See Section IV.B., infra.

[5] The law of lawyering is found largely in the state ethics codes to which lawyers must adhere in order to remain in good standing as members of a licensed profession. In most states these codes are based on the ABA Model Rules of Professional Conduct. See < http://www.abanet.org/cpr/mrpc/mrpc_toc.html> (last visited January 7, 2005). In a few states they are based on the ABA Model Code of Professional Responsibility (which was replaced by the Model Rules of Professional Conduct in 1983) or, as in the case of California, on the state’s own formulation of ethical norms. The conduct of lawyers, however, is governed not only by these ethics codes but by other authorities such as case law (e.g., disciplinary, legal malpractice, breach of fiduciary duty, disqualification, attorney fees), statutes (e.g., attorney fees), and rules of procedure (e.g., civil procedure, evidence). A practitioner who does not specialize in ethics representations faces a daunting task in keeping up with current developments in each of these areas.

[6] See, e.g., Corn v. State Bar of California, 67 Cal.Rptr. 401, 68 Cal.2d 461, 439 P.2d 313 (1968); In re Lopes, 770 A.2d 561 (D.C. 2001); In re Paris, 262 A.D. 474, 30 N.Y.S.2d 415 (N.Y. 1941); State ex rel. Oklahoma Bar Ass’n v. Scroggs, 70 P.3d 821 (Okla. 2003); In re Kraus, 289 Or. 661, 616 P.2d 1173 (1980); In re Disciplinary Proceeding Against Guarnero, 152 Wash.2d 51, 93 P.3d 166 (2004).

[7] See, e.g., In re Jett, 180 Airz. 103, 882 P.2d 414 (Ariz. 1994) (expert testimony concerning respondent’s actions in light of battered woman syndrome); In re Greene, 701 A.2d 1061 (Del. 1997) (expert testimony concerning respondent’s drug addiction); In re Marshall, 762 A.2d 530 (D.C. 2000) (expert testimony that respondent’s cocaine addition substantially affected his misconduct); In re Haith, 742 N.E.2d 940 (Ind. 2001) (expert testimony that respondent, who had 3 convictions for driving under the influence, was alcohol dependent); Committee on Professional Ethics and Conduct of Iowa State Bar Ass’n v. Barrer, 495 N.W.2d 756, 758 (Iowa 1993) (expert testimony concerning alcoholism); In re Marinoff, 819 So.2d 305, 311 (La. 2002) (respondent “introduced no evidence, such as testimony from expert witnesses, which would have established that the head injury he suffered in the accident was sufficient to impair his responsibility for the statements” that led to disciplinary proceedings); Attorney Grievance Comm’n of Maryland v. Garfield, 797 A.2d 757 (Md. 2002) (expert testimony that “root cause” of respondent’s professional lapses was drug abuse); In re Disciplinary Action Against Collins, 659 N.W.2d 754 (Minn. 2003) (letter from expert witness stating respondent suffered from unspecified “disability”); In re Tonzola, 162 N.J. 296, 744 A.2d 162 (N.J. 2000) (expert testimony concerning bipolar disorder and respondent’s misconduct); Matter of Siegel, 193 A.D.2d 181, 602 N.Y.S.2d 592 (N.Y. App., 1^st Dept.1993) (expert testimony that respondent’s neglect in clients matters largely attributable to depression); Matter of Disciplinary Action Against Rau, 533 N.W.2d 691, 695 (N.D. 1995) (respondent failed to offer expert testimony regarding his asserted mitigation due to mental illness); Akron Bar Ass’n v. Goodlet, 99 Ohio St. 3d 355, 792 N.E.2d 1072 (Ohio 2003) (respondent’s severe depression); Office of Disciplinary Counsel v. Christie, 536 Pa. 394, 400, 639 A.2d 782 (Pa. 1994) (expert testimony that respondent suffered from psychiatric condition causing involuntary attraction to minor and adult males); In re Perry, 291 S.C. 124, 352 S.E.2d 479 (1987) (expert testimony that respondent’s conduct was direct result of alcohol and drug addiction); Matter of Disciplinary Proceedings Against Petersen, 120 Wash.2d 833, 868, 846 P.2d 1330 (Wash. 1993) (expert testimony when respondent pleads physical or mental disability as mitigating factor).

[8] ABA Model Rule of Professional Conduct 1.15(d) provides:

Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

[9] AB Model Rule of Professional Conduct 7.1 provides:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

[10] The Comment to Rule 7.1 provides in pertinent part:

An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case.

[11] In the interest of full disclosure, it must be noted that the problem is more than an academic one for the author. The author has been asked to serve as an expert witness in discipline matters on various occasions. In some cases he has been asked by the Bar, in other cases by the respondent. In some cases his testimony has been admitted, in other cases his testimony has been excluded. In one case in which expert testimony of the author was excluded, the respondent sought review of the judge’s decision in the state supreme court. Foregoing an opportunity to provide needed guidance to the bench and bar, the supreme court, in a 29-page opinion, completely ignored the issue of the admissibility vel non of the proffered testimony. The Florida Bar v. F. Lee Bailey, 803 So.2d 695 (Fla. 2001). The most ironic situation involving the author occurred during August 2004: during a break in a deposition during which the author was testifying on behalf of the state bar, he received a telephone call informing him that the bar had successfully obtained an order excluding him from testifying on behalf of a respondent in another, unrelated disciplinary case. It should be apparent that the lack of any real certainty, or even firm guidelines, concerning admissibility of expert testimony in discipline cases presents very real practical problems for respondents who are considering retaining an expert.

[12] In 2002 state disciplinary agencies throughout the United States received more than 120,861complaints against lawyers. Of these, 7,322 warranted the filing of formal charges, and formal charges actually were filed against 4,460 lawyers. American Bar Association Center for Professional Responsibility, Survey on Lawyer Discipline Systems 2002 (Chicago, 2003), chart I.

[13] In some state disciplinary systems the trial of an accused lawyer occurs before a judge, who sometimes if called a “referee.” See, e.g., Nebraska Supreme Court Disciplinary Rules, Rule 10 < http://court.nol.org/rules/Discipli_03.htm> (last visited February 1, 2005). In other systems the trial occurs before a multi-member hearing panel. See, e.g., Minnesota Rules on Lawyer Professional Responsibility, Rule 9 < http://www.courts.state.mn.us/lprb/rlpr.html> (last visited February 1, 2005).

[14] See discussion at Section IV.C., infra.

[15] See notes 156-157, infra, and accompanying text.

[16] See Section III.E., infra.

[17] As of January 30, 2005, there were 200,220 lawyers admitted to the California State Bar. See <http://members.calbar.ca.gov/search/demographics.aspx> (last visited February 1, 2005).

[18] For example, California is the only state that has its own “State Bar Court.” See <http://calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10173&id=2111> (last visited February 1, 2005).

[19] 1995 WL 170223, 3 Cal. State Bar Ct. Rptr. 266 (Cal. Bar Ct. 1995).

[20] Id., at *1.

[21] Id., at *5.

[22] Id., at *5, n. 7.

[23] Cal.Evid.Code sec. 805 (2004).

[24] Fed. R. Evid. 704 (West 2004).

[25] In the Matter of Davis, 2003 WL 21904732, at *10, 4 Cal.State Bar Ct. Rptr. 576 (Cal.Bar.Ct. 2003).

[26] Id.

[27] Id.

[28] A lawyer who has been suspended or disbarred from practice typically must successfully complete certain procedures in order to be reinstated to active status as a member of the bar. This often includes petitioning the state supreme court for approval of his or her request to be reinstated. See, e.g., Rules Regulating The Florida Bar, Rule 3-7.10.

[29] In the Matter of Bodell, 2002 WL 31654998, at *4, 4 Cal.State Bar Ct. Rptr. 459 (Cal.Bar Ct. 2002).

[30] 258 Neb. 181, 602 N.W.2d 486 (1999).

[31] Neb. Stat. sec 7-105(6).

[32] Neb Stat. sec. 7-106).

[33] DR 1-102(A), Nebraska Code of Professional Responsibility.

[34] DR 2-106, Nebraska Code of Professional Responsibility.

[35] DR 9-102, Nebraska Code of Professional Responsibility.

[36] The referee in the disciplinary proceeding found that respondent’s real motive in filing suit was simply to increase amount of fee he allegedly was due under the contingent fee contract (which provided for respondent to receive 1/3 of the recovery if settlement was reached before filing suit, and 40% if suit was filed).

[37] 258 Neb. at 196.

[38] Id.

[39] Id.

[40] Id.

[41] See Section IV.A., infra.

[42] See Hawkins v. Comm’n for Lawyer Discipline, notes 49-58, infra, and accompanying text.

[43] 151 S.W.3d 602 (Tex.App. 2004).

[44] Texas is the only jurisdiction in the United States that permits disciplinary cases to be tried before a jury.

[45] 151 S.W.3d at 616.

[46] Id.

[47] Texas’s evidentiary rule is substantially similar to the federal rule. Tex.R.Evid. 702 provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”

[48] The court also concluded that the expert witness was qualified and that her testimony was not unreliable.

[49] 988 S.W.2d 927 (Tex.App. 1999), cert. denied, 529 U.S. 1022, 120 S.Ct. 1426, 146 L.Ed.2d 317 (2000).

[50] Tex. Discipl. R. Prof. Conduct 1.01(b).

[51] Tex. Discipl. R. Prof. Conduct 1.15(c), (d).

[52] 988 S.W.2d at 936.

[53] Id. The court also noted that “no expert testimony on the interpretation of the Rules was required. Moreover, no expert testimony on the standard of care required in malpractice cases was required to aid the trial court as the trier of fact in determining whether Hawkins' actions violated the Rules as interpreted.” Id.

[54] Nor was this distinction discussed in Goldstein v. Comm’n for Lawyer Discipline, 109 S.W.3d 810 (Tex.App. 2003), in which a respondent lawyer was accused of charging a contingent fee in a divorce case in violation of Tex. Discipl. R. Prof. Conduct 1.06. After being found guilty the respondent asserted on appeal that “expert testimony was required to establish violations of the disciplinary rules.” Id., at 815. Without elaboration, the court cited Hawkins, supra notes 49-58, stating that “interpretation of the disciplinary rules is a question of law for the trial court, and therefore expert testimony is not required.” (Emphasis added.) Id.

[55] See Section IV.A., infra.

[56] 988 S.W.2d at 937.

[57] Id.

[58] See discussion of Rodgers v. Comm’n for Lawyer Discipline, supra, notes 42-48, and accompanying text.

[59] 656 N.W.2d 661 (N.D. 2003).

[60] N.D. R. Prof. Conduct 1.4(b).

[61] The respondent had been the subject of prior disciplinary sanctions. 656 N.W.2d at 664-65.

[62] 656 N.W.2d at 666.

[63] Id.

[64] The court stated, “Whereas the rules of professional conduct set a minimum level of conduct with the consequence of disciplinary action, malpractice liability is premised upon the conduct of the reasonable lawyer under the particular circumstances.” Id.

[65] 621 N.W.2d 361 (N.D. 2001). In Howe the respondent was engaged in estate planning for client and client’s sister. He drafted a will and a trust agreement, but the trust was not funded before client’s death. When the client died respondent made a failed attempt to fund the trust through post-mortem estate planning and failed to properly inform the beneficiaries of the situation. Respondent was found guilty of engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation (N.D. R. Prof. Conduct 8.4(d)) and making false statements to beneficiaries to induce them to sign disclaimer documents (N.D. R. Prof. Conduct 4.1). On review respondent argued that expert testimony was required to establish a violation of the rules. The supreme court disagreed:

Under N.D.R. Lawyer Discipl. 3.5(B), the North Dakota Rules of Evidence apply in disciplinary proceedings ‘insofar as appropriate.’ Rule 702, N.D.R.E, provides an expert witness may testify if ‘specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.’ Here, Howe was alleged to have knowingly made false statements and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. Expert testimony would not have assisted the hearing panel in determining if Howe made statements he knew to be false or if he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. We conclude expert testimony was unnecessary in this case. (Emphasis added.)

The court thus decided that, in a case where the allegations were knowingly making false statements and engaging in dishonesty, expert testimony was not required. Notably, it did indicate that expert testimony was admissible in an appropriate case.

[66] See Section IV.A., infra.

[67] 656 N.W.2d at 667.

[68] Id.

[69] 637 N.W. 2d 710 (N.D. 2001). The respondent was accused of ethics rules violations in connection with his drafting of a codicil and a will. At his trial the hearing panel admitted testimony from respondent’s expert that respondent’s conduct in drafting the will did not violate the rule. On review Disciplinary Counsel asked the supreme court to rule that “such testimony, regarding the appropriate interpretation of the rules of professional conduct, is never admissible in disciplinary proceedings.” Id., at 714. The court declined the invitation to adopt a per se rule against admissibility. Instead, citing In re Howe, supra note 65, the court stated that “in determining if the professional conduct rules have been violated, expert testimony is unnecessary if it will not assist the disciplinary hearing panel in understanding the evidence or in deciding a fact in issue.” Id.

[70] 426 Mass. 448, 689 N.E.2d 783 (1998).

[71] Mass. Code Prof. Resp. DR 1-102(A)(4).

[72] Mass. Code Prof. Resp. DR 2-106.

[73] 426 Mass. at 450.

[74] 426 Mass. at 452.

[75] 396 Mass. 643, 487 N.E.2d 1377 (1986).

[76] 396 Mass. at 650.

[77] 845 A.2d 373 (Vt. 2004).

[78] Vt. R. Prof. Conduct 1.5(a).

[79] Id.

[80] 831 So.2d 163 (Fla. 2002).

[81] Fla. R. Prof. Conduct 4-1.15.

[82] Fla. R. Prof. Conduct 4-1.5(a).

[83] 831 So.2d at 169. In the same case, the state bar’s auditor testified as an expert witness concerning the trust account violation charge. The court’s opinion states that the auditor testified that respondent “violated multiple trust accounting rules.” Id., at 168. The referee thus clearly permitted the auditor to testify as to the ultimate issue of whether the respondent violated the rules as charged.

[84] See notes 123-125, infra.

[85] 57 P.3d 395 (Colo. 2002).

[86] Colo. R. Prof. Conduct 8.4(c).

[87] 57 P.3d at 398.

[88] Id., at 402.

[89] Id., at 400.

[90] American Bar Association, ABA Standards for Imposing Lawyer Sanctions (Chicago, 1992).

[91] 57 P.3d at 400.

[92] Id., at 400-401.

[93] An earlier Colorado case provides another example of the many ways in which expert witness testimony can be used in a lawyer disciplinary case. A respondent was charged with violating the conflict of interest rules by entering into a business transaction with a corporation while he represented that corporation (see Colo. R. Prof. Conduct 1.7(b), 1.8(a)). A hearing board concluded that respondent violated rules and recommended discipline. Respondent sought review in the state supreme court. Agreeing with the hearing board, the court suspended respondent for 30 days and ordered him to pay costs incurred in the prosecution, including $3708 for the complainant’s expert witness. The court’s opinion does not explain why or how the complainant, who usually is not a party to disciplinary proceedings, was able to introduce expert testimony on its behalf. The opinion, however, does recognize the value of the witness’s testimony, which extended to whether a conflict of interest was present:

The certified statement of costs in this case includes a charge of $3708 for the complainant's expert witness. [Respondent] Cimino claims that this charge is excessive because when the complainant's expert testified to matters other than the injury his misconduct caused, the testimony was outside the relevant scope of the disciplinary hearing. Cimino claims that he should be required to reimburse the expert for the time devoted to that one issue only. We disagree. We have examined the witness's testimony and have found it relevant to, not only the harm, but also the existence of the conflicts of interest and how those conflicts may have shaped the corporation's capital structure. Cimino has not advanced any other reason why the expert fee should be deemed excessive. We therefore order that he must pay the entire amount of expert fees. (Emphasis added.)

In re Cimino, 3 P.3d 398, 402 (Colo. 2000).

[94] 308 Or. 560, 784 P.2d 95 (1990).

[95] See notes 100-102, infra, and accompanying text.

[96] The rule in question was numbered Or. Code Prof. Resp. DR 1-102(A)(4) at the time of the alleged offense. At the time of the supreme court’s opinion, the rule had been renumbered as Or. Code Prof. Resp. DR 1-102(A)(3).

[97] 308 Or. at 570.

[98] Oregon’s evidentiary rule is substantially similar to the federal rule. Oregon Revised Statutes sec. 40.410 provides:

Rule 702. Testimony by experts. If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

Oregon Revised Statutes sec. 40.420 provides:

Rule 704. Opinion on ultimate issue. Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

[99] 308 Or. at 570. In the Brandsness case cited by the court, a hearing panel had permitted a respondent to have “local lawyers testify as expert witnesses offering their respective opinions of the accused’s conduct.” 299 Or. 420, 434. The state bar did not object until after the hearing, so on review the supreme court did not reach the issue. The court noted in dicta: “Although we have some misgivings about this procedure [admitting the testimony], because the Bar did not object to the receipt of the testimony until after the hearing and because of the outcome of this case, we do not reach this issue.” Id.

[100] 331 Or. 252, 14 P.3d 586 (2000).

[101] 333 Or. 42, 36 P.3d 468 (2001). Respondent was charged with not providing competent representation in the trial of a personal injury case, thus violating Or. Code Prof. Conduct DR 6-101(A). The state bar’s expert witness was permitted to testify that “it is ‘absolutely essential’ for a lawyer to have a copy of the client’s deposition transcript at trial so that the client does not mistakenly make statements inconsistent with the client’s prior testimony.” This testimony, of course, related to an external standard of actual practice. 333 Or. at 60.

[102] 334 Or. 238, 48 P.3d 147 (2002). Respondent was charged with conduct prejudicial to administration of justice (Or. Code Prof. Resp. DR 1-102(A)(3)) and charging a clearly excessive fee (OR. Code Prof. Resp. DR 2-106(A). Experts testified at the trial. The testimony concerned respondent’s handling of the case and the alleged excessiveness of the fee. Based in part on testimony from the state bar’s expert regarding the handling of the case, the court concluded that the bar had failed to prove a violation by clear and convincing evidence. The experts who testified regarding the excessive fee charge “were divided on the issue whether the accused’s fees were clearly excessive.” 334 Or. at 257, n. 8. As a practical matter, any such testimony went to the ultimate issue in the case: whether the rule against clearly excessive fees was violated.

[103] 91 Ill.2d 413, 438 N.E.2d 187 (Ill. 1982).

[104] 91 Ill.2d at 423.

[105] Id.

[106] See Section IV.D., infra.

[107] The cases were In re Friedman, 76 Ill.2d 392, 392 N.E.2d 1333 (1979), and In re Kutner, 78 Ill.2d 157, 399 N.E.2d 963 (1979).

[108] 91 Ill.2d at 424.

[109] Id., at 425.

[110] 131 Ill.2d 499, 546 N.E.2d 613 (1989).

[111] 131 Ill.2d, at 507.

[112] 792 N.E.2d 865 (2003).

[113] Ind. R. Prof. Conduct 7.1(d)(3), 7.1 (d)(4).

[114] 792 N.E.2d at 867.

[115] Id.

[116] 270 Ind. 390, 386 N.E.2d 174 (1979).

[117] 270 Ind. at 397.

[118] Whether a state supreme court, with most of its justices removed from the active practice of law for some time, actually is fully informed of the nuances of everyday practice in all areas of specialty is, at minimum, a debatable proposition. It may also be noted that the Supreme Court of Florida has indicated that expert testimony is helpful, if not necessary, in cases involving alleged violation of the fee rules. See The Florida Bar v. Barley, 831 So.2d 163 (Fla. 2002), notes 80-83, supra, and accompanying text.

[119] 792 N.E.2d 851 (2003).

[120] Ind. R. Prof. Conduct 1.5.

[121] Other Indiana authority that appears inconsistent with the court’s broad pronouncement in Keller is Powers v. State, 440 N.E.2d 1096 (Ind. 1982). This was a criminal case, not a lawyer disciplinary proceeding. The defendant was charged with dealing in illegal drugs. Over objection, the trial court admitted a police officer’s testimony that, in the officer’s opinion, the drugs were possessed for delivery and not for personal use. On appeal, defendant argued that “the witness’ opinion of intent is inadmissible because whether or not Appellant intended to deal in narcotics was a determination that the jury must make.” Id., at 1105. The supreme court held that the trial court did not abuse its discretion in admitting this testimony:

The old rule that a witness may not give an opinion of an ultimate fact question has been abrogated in Indiana. Shelby v. State, (1981) Ind., 428 N.E.2d 1241, 1243; Woods v. State, (1978) 267 Ind. 581, 582, 372 N.E.2d 178, 178. The trial court in its discretion may permit such opinion evidence in an appropriate case; accordingly, this Court will reverse such an exercise of discretion only upon a showing of abuse. Id. Witnesses have given opinions on whether a person is intoxicated, Wofford v. State, (1979) Ind., 394 N.E.2d 100, whether the defendant made true statements to the police, Porter v. State, (1979) Ind., 391 N.E.2d 801, whether the defendant appreciated the wrongfulness of his conduct, Bobbitt v. State, (1977) 266 Ind. 164, 361 N.E.2d 1193, and whether a child had been abused, Ball v. State, (1980) Ind.App., 406 N.E.2d 305.

We do not find reversible error here. As the prosecution stated in response to defense counsel's objection, Officer Croft had investigated numerous drug cases and therefore he had enough experience to give an opinion on whether or not the drugs were held for sale or for personal use. The large amount of drugs found in the house, plus the sifters and other tools, indicated that the drugs would be prepared for sale. The jury would then weigh Officer Croft's opinion before ultimately deciding the question. There was no abuse of discretion in allowing the testimony of Officer Croft.

440 N.E.2d at 1106. Again, one must ask: How is opinion testimony in a criminal trial regarding intent (an element of the crime) materially different from opinion testimony in a lawyer disciplinary proceeding regarding intent or knowledge (elements of some ethics rules)? Also, how is opinion testimony in a criminal trial regarding whether a defendant made true statements to the police different than opinion testimony in a lawyer disciplinary proceeding regarding whether a respondent’s statements in an ad were truthful or misleading?

[122] In re Fair, 780 A.2d 1106, 1112 (D.C. 2001) (respondent accused of mishandling funds and violating fee rules by taking probate fee prior to court approval; respondent’s expert testified concerning “prevalence in actual probate practice” of taking fees prior to obtaining court approval to show that respondent did not intentionally misappropriate funds); In re Stiller, 725 A.2d 533 (D.C. 1999) (respondent accused of dishonestly structuring cash fee payments in violation of law; respondent’s experts testified concerning likelihood that practitioners would have known of recent changes in relevant statutory requirements); The Florida Bar v. Williams, 753 So.2d 1258, 1261 (Fla. 2000) (respondent accused of trust accounting violations; bar’s expert testified that respondent “was not in compliance with the rules governing trust accounts”); The Florida Bar v. Simring, 612 So.2d 561, 565 (Fla. 1993) (respondent accused of trust accounting violations; bar’s expert testified “concerning the trust account violations”); The Florida Bar v. Borja, 554 So.2d 514 (Fla. 1990) (respondent accused of trust accounting violations; experts for both bar and respondent testified whether respondent had complied with rules regulating trust accounts); In re Wittenbrink, 849 So.2d 18 (La. 2003) (respondent accused of conversion and dishonesty in handling of funds withheld from employee’s pay; respondent’s expert testified that “there was no ‘bright line’ test regarding who actually owned” funds); Attorney Grievance Comm’n of Maryland v. McClain, 373 Md. 196, 817 A.2d 218 (2003) (respondent accused of violating rules regarding competent representation and trust accounting; bar’s expert testified that respondent violated rule); Attorney Grievance Comm’n of Maryland v. Herman, 380 Md. 378, 844 A.2d 1181 (2004) (respondent accused of misappropriating trust funds; respondent’s experts testified regarding lack of intent due to substance abuse and psychological problems, although trial court disregarded those opinions in reaching its decision).

[123] The Florida Bar v. Della-Donna, 583 So.2d 307, 309 n.1 (Fla. 1989) (respondent accused of multiple rules violations including bringing frivolous claims; bar’s experts testified that respondent had shown “pattern of misusing the courts to bring frivolous litigation for his own personal benefit’); Attorney Grievance Comm’n of Maryland v. McClain, 373 Md. 196, 204 n.8, 817 A.2d 218 (2003) (respondent accused of violating rules regarding competent representation and trust accounting; bar’s expert testified regarding mistakes respondent made in handling foreclosure sale and standard of competency in the area); In re Elmore, 123 N.M. 79, 81, 934 P.2d 273 (1997) (respondent accused of failing to competently represent client in bankruptcy matter; bar’s expert testified regarding how “reasonably competent attorney” would act in respondent’s situation); In re Discipline of Laprath, 670 N.W.2d 41 (S.D. 2003) (respondent accused of multiple violations of competent representation rule; bar subpoenaed judges to testify as to their opinion regarding respondent’s competency to practice law); In re Disciplinary Proceeding Against DeRuiz, 99 P.3d 881 (Wash. 2004) (respondent accused of neglect, failure to communicate, failure to refund unreasonable and unearned fees; bar’s expert testified regarding merits of respondent’s defense to lack of diligence charge); In re Disciplinary Proceedings Against Goldstein, 681 N.W.2d 891 (Wis. 2004) (respondent accused of neglect, failure to communicate, and fee violations; respondent’s expert testified regarding extent of duty to communicate with clients in matters of that type).

[124] In re Connelly, 203 Ariz. 413, 55 P.3d 756 (Ariz. 2002) (respondent accused of charging unreasonable fee; experts for both bar and respondent testified regarding reasonableness of flat fee in criminal case); Florida Bar v. Carlon, 820 So.2d 891 (Fla.2002) (respondent accused of charging clearly excessive fee; bar’s expert testified concerning what would constitute “reasonable fee” or clearly excessive fee”); The Florida Bar v. Garland, 651 So.2d 1182, 1183 (Fla. 1995) (respondent accused of charging clearly excessive fee, engaging in dishonesty, fraud, deceit, or misrepresentation, and trust accounting violations; bar’s expert testified regarding reasonable fee for services performed by respondent); The Florida Bar v. Hollander, 607 So.2d 412, 414 (Fla. 1993) (respondent accused of charging clearly excessive fee; bar’s expert testified concerning “personal injury and contingency fee agreements”); The Florida Bar v. Richardson, 574 So.2d 60 (Fla. 1990) (respondent accused of charing clearly excessive fees; bar’s expert testified regarding reasonableness of fees); The Florida Bar v. Holland, 520 So.2d 283 (Fla. 1988) (respondent accused of failing to competently represent clients and charging excessive fees; experts for both bar and respondent testified regarding reasonableness of fee); Iowa Supreme Court Board of Professional Ethics and Conduct v. Gallner, 621 N.W.2d 183 (Iowa 2001) (respondent accused of impropriety in connection with fees in social security disability matters; experts for both bar and respondent testified regarding practice of lawyers in type of situation faced by respondent); In re Arabia, 270 Kan. 742, 19 P.3d 113 (2001) (respondent accused of charging unreasonable fees; experts for both bar and respondent testified regarding reasonableness of respondent’s fees); In re Keiser, 263 A.D.2d 609, 694 N.Y.S.2d 189 (N.Y., App. Div., 3d Dept., 1999) (respondent accused of charging excessive fee in matrimonial matter; bar’s experts testified that fee was clearly excessive); Columbus Bar Ass’n v. Klos, 81 Ohio St.3d 486, 692 N.E.2d 565 (Ohio 1998) (respondent accused of charging clearly excessive fee; respondent’s experts testified regarding types of fee arrangements customarily used by lawyers in employment law field); Office of Disciplinary Counsel v. Fish, 85 Ohio St.3d 168, 707 N.E.2d 851 (1999) (respondent accused of charging clearly excessive fee; respondent’s expert testified regarding excessive fee issue); In re Discipline of Dorothy, 605 N.W.2d 493 (S.D. 2000) (respondent accused of charging unreasonable fees; respondent’s experts testified reasonableness of fees and whether respondent violated ethical rules); Cohn v. Board of Professional Responsibility of the Supreme Court of Tennessee, 151 S.W.3d 473 (Tenn. 2004) (respondent accused of violations arising from fee practices in bankruptcy court matters; experts testified regarding common practices relating to fees and fee awards); In re Disciplinary Proceeding Against Vanderbeek, 101 P.3d 88 (Wash. 2004) (respondent accused of charging excessive and unreasonable fees; experts for both bar and respondent testified regarding fee issues); In re Disciplinary Proceeding Against DeRuiz, 99 P.3d 881 (Wash. 2004) (respondent accused of neglect, failure to communicate, failure to refund unreasonable and unearned fees; bar’s expert testified regarding reasonableness of fee charged); In re Disciplinary Proceeding Against Egger, 99 P.3d 477 (Wash. 2004) (respondent accused of charging unreasonable fees; respondent’s expert testified regarding reasonableness of fee); In re Disciplinary Proceedings Against Kinast, 660 N.W.2d 912 (Wis. 1999) (respondent accused of charging excessive fee in divorce matter; experts for both bar and respondent testified regarding reasonableness of fee); In re Disciplinary Proceedings Against Gilbert, 595 N.W.2d 715 (Wis. 1999) (respondent accused of multiple rules violations including charging excessive and unreasonable fees; experts for both bar and respondent testified regarding reasonableness of fees).

[125] In re Warner, 851 So.2d 1029 (La. 2003) (respondent accused of assisting client in criminal or fraudulent conduct, having conflict of interest, lack of truthfulness in statements to others, and engaging in dishonesty, fraud, deceit, or misrepresentation in connection with settling personal injury claim for deceased client; respondent’s experts testified regarding legal issues of probate and succession, and opined concerning lack of criminal activity on respondent’s part).

[126] Matter of Johnson, 84 P.3d 637, 640 (Mont. 2004) (respondent accused of violating conflict of interest rule by concurrently representing clients who were directly adverse; respondent’s expert testified regarding concept of “informed consent”).

[127] This determination was based on the author’s almost two decades of experience in the legal ethics field, including research, teaching, consulting with and representing lawyers and bar organizations, and testifying as an expert witness.

[128] Such testimony routinely used in hearings on disqualification motions, which often turn on application of this rule. See note 135, supra, and accompanying text.

[129] Several hundred lawyers throughout the United States are members of the Association of Professional Responsibility Lawyers (“APRL”). Hundreds more belong to the National Organization of Bar Counsel (“NOBC”), a group of lawyers who prosecute discipline cases. The Mission Statement of APRL provides:

The Association of Professional Responsibility Lawyers (“APRL”) was formed to meet the growing demand for expertise in the law of lawyering, melding substantive law, procedural rules and regulatory standards governing various aspects of a lawyer's professional life. APRL provides a national clearinghouse of information regarding recent developments and emerging issues in the areas of admission to practice law, professional ethics, disciplinary standards and procedures, and professional liability. APRL fulfills its mission in a variety of ways: annual meetings; seminars; articles written by academics and practitioners; and through informal networking.

APRL is an independent national organization of lawyers concentrating in the fields of professional responsibility and legal ethics, including: law professors; bar association counsel; counsel for respondents in disciplinary hearings; ethics expert witnesses; legal malpractice litigators; counsel to disciplinary committees; and in-house law firm ethics counsel. Consistent with its diverse membership, APRL speaks freely on issues of vital importance to the legal profession.

See < http://www.aprl.net>, < http://www.nobc.org> (last visited January 27, 2005).

[130] See Selinger, Carl M., “The Problematical Role of the Legal Ethics Expert Witness,” 13 Geo. J. Legal Ethics 405, 410-415 (2000).

[131] For a state-by-state list of bar organizations that render written advisory ethics opinions, see Joy, Peter A., “Making Ethics Opinions Meaningful: Toward a More Effective Regulation of Lawyers’ Conduct,” 15 Geo. J. Legal Ethics 313 (2002) (Appendix A).

[132] Oral opinions usually are rendered through ethics hotlines” (often reached via an “800” telephone number) operated by bar organizations. These are immensely popular with their bar members. For example, during the 2003-04 fiscal year the Florida Bar answered more than 21,000 telephone calls on its ethics hotline, which is staffed by seven full-time attorneys. National organizations operating ethics hotlines include the American Bar Association’s Center for Professional Responsibility. State bar organizations operating ethics hotlines include: California; Colorado; Florida; Georgia; Kentucky; Maine; Maryland; Massachusetts; Michigan; Nevada; New Jersey; Pennsylvania; South Carolina; Texas; Utah; Virginia; Washington; and Wisconsin. Local bar associations operating ethics hotlines include: Baltimore City; Cincinnati; Nassau County (N.Y.); New York City; New York County; Philadelphia; San Diego County; and San Francisco. The National Conference of Chief Justices, in its “National Action Plan on Lawyer Conduct and Professionalism,” has called on all state bars to provide ethics hotline programs. See <http://www.ncsc.dni.us/ccj/NATLPLAN/execsumm.htm> (last visited February 4, 2004).

[133] Advisory opinion processes are available to help judges respond to their own ethical dilemmas. A list of judicial organizations is available on the American Judicature Society’s web site at http://www.ajs.org/ethics/eth_advis_comm_links.asp (last visited January 27, 2005).

[134] Fed R. Evid 702 (2004) provides:

[135] See generally Flamm, Richard E., Lawyer Disqualification: Conflicts of Interest and Other Bases (Banks & Jordan Law Pub. Co.: Berkeley, 2003), at sec. 22.5.

[136] See, e.g., Arkansas State Board of Nursing v. Morrison, ___ S.W.3d ___, 2004 WL 2453932 (Ark.App.) (nursing disciplinary action concerning alleged statutory violation); State Board of Medical Examiners v. McCroskey, 880 P.2d 1188 (Colo. 1994) (medical disciplinary action concerning alleged statutory violation); Aldrete v. Dept. of Health Board of Medicine, 879 So.2d 1244 (Fla. App. 1^st DCA 2004) (medical disciplinary action concerning alleged statutory violation); Haw v. Idaho Board of Medicine, 140 Idaho 152, 90 P.3d 902 (2004) (medical disciplinary action concerning alleged statutory violation); Painter v. Dentistry Examining Board, 265 Wis.2d 248, 665 N.W.2d 397 (Wis.App. 2003) (dentistry disciplinary action concerning alleged statutory violation).

[137] See, e.g, Burnett v. Supreme Court Committee on Professional Conduct, 2004 WL 2476442 (Ark. 2004) (discipline proceedings are sui generis); Matter of Beren, 178 Ariz. 400, 402, 874 P.2d 320 (1994) (although court uses criminal convictions to shortcut process of proving professional misconduct, lawyer disciplinary actions are sui generis proceedings with no other connection to criminal law); In re Rose, 22 Cal.4th 430, 443, 993 P.2d 956, 93 Cal.Rptr.2d 298, (2000) (attorney disciplinary proceedings are sui generis and not necessarily governed by procedures applicable to ordinary civil and criminal litigation); Colorado Supreme Court Grievance Committee v. District Court, City and County of Denver, Colo., 850 P.2d 150, 152 (Colo. 1993) (district courts do not have subject-matter jurisdiction over disciplinary proceedings because they are not strictly civil or criminal cases); In re Bailey,821 A.2d 851, 863 (Del. 2003) (lawyer disciplinary proceedings are sui generis and governed by the rules of civil procedure only to extent practicable); In re Disciplinary Bd. of Hawaii Supreme Court, 91 Hawaii 363, 368, 984 P.2d 688 (1999) (attorney disciplinary proceedings are sui generis); In re Blank, 145 Ill.2d 534, 553, 585 N.E.2d 105 (1992) (lawyer disciplinary proceedings are neither civil nor criminal and governed solely by supreme court’s rules and decisions); Matter of Moore, 453 N.E.2d 971, 973 (Ind. 1983) (attorney disciplinary action is neither criminal nor civil); Grievance Adminstrator v. Attorney Discipline Board, 444 Mich. 1218, 515 N.W.2d 360 (1994) (attorney discipline matters are neither civil nor criminal cases; they are similar and dissimilar to both); Matter of Insurance Agents’ Licenses of Kane, 473 N.W.2d 869, *873 to 473 N.W.2d 869, *874 (Minn. 1991) (attorney discipline proceedings, under the supervision and control of the judiciary, are sui generis); Davis v. Wright, 243 Neb. 931, 938, 503 N.W.2d 814 (1993) (attorney discipline proceedings have a “nature all their own, neither civil nor criminal”) (citing Ettinger v. Board of Medical Quality Assurance, 135 Cal.App.3d 853, 856, 185 Cal.Rptr. 601 (1982)); In re Disciplinary Action Against McDonald, 609 N.W.2d 418, 423 (N.D. 2000) (although lawyer disciplinary proceedings are neither civil nor criminal, but quasi-judicial in nature, rules of evidence and civil procedure apply insofar as appropriate); State ex rel. Oklahoma Bar Ass'n v. Minter, 961 P.2d 208, 213 (Okal. 1998) (attorney disciplinary proceedings are sui generis, having elements of both criminal and civil proceedings); In re Conduct of Barber, 322 Or. 194, 206, 904 P.2d 620 (1995) (lawyer disciplinary proceedings are sui generis, being neither civil nor criminal in nature); Anonymous (M-156-90) v. State Board of Medical Examiners, 323 S.C. 260, 273, 473 S.E.2d 870 (1996), reversed on other grounds, 329 S.C. 371, 496 S.E.2d 17 (1998) (attorney discipline proceedings have a “nature all their own, neither civil nor criminal”) (citing Ettinger v. Board of Medical Quality Assurance, 135 Cal.App.3d 853, 856, 185 Cal.Rptr. 601 (1982)); In re Brown, 157 W.Va. 1, 8, 197 S.E.2d 814 (1973) (attorney disciplinary proceedings are no more civil than criminal, rather sui generis).

[138] See, e.g., In re Swisher, 273 Kan. 143, 148, 41 P.3d 847 (2002); Lawyer Disciplinary Board v. Barber, 211 W.Va. 358, 365, 566 S.E.2d 245 (2002).

[139] See, e.g., In re Harris, 334 Or. 353, 364, 49 P.3d 778 (2002).

[140] See, e.g., People v. Smith, 937 P.2d 724, 727 (Colo. 1997).

[141] See, e.g., Disciplinary Matter Involving Triem, 929 P.2d 634, 641 (Alaska 1996); In re Chastain, 340 S.C. 356, 532 S.E.2d 264 (2000).

[142] See, e.g., Matter of Frazier, 1 Cal. State Bar Ct. Rptr. 676, 697, 1991 WL 207109 (Cal. Bar Ct. 1999); People v. Smith, 937 P.2d 724, 729 (Colo. 1997); Matter of Redding, 269 Ga. 537, 501 S.E.2d 499 (1998); In re March, 71 Ill.2d 382, 396, 376 N.E.2d 213 (1978); Attorney Q v. Mississippi State Bar, 587 So.2d 228, 234 (Miss. 1991); Tucker v. Virginia State Bar, 233 Va. 526, 357 S.E.2d 525 (1987).

[143] See, e.g., In re Crooks, 51 Cal.3d 1090, 1099, 800 P.2d 898, 275 Cal.Rptr. 420 (1990); Robinson & Co., Inc. v. Bruton, 552 A.2d 466, 473 (1989); Goldstein v. Commission on Practice of Supreme Court, 297 Mont. 493, 995 P.2d 923 (2000).

[144] See notes 110-111, supra, and accompanying text.

[145] Rule 25, Alabama Rules of Disciplinary Procedure; Rule 27, Alaska Rules of Disciplinary Enforcement; Rule 53, Rules of the Supreme Court of Arizona; Section 14, Procedures of the Arkansas Supreme Court Regulating the Conduct of Attorneys; Section 6049.1, California State Bar Act; Rule 251.21, Colorado Rules of Procedure Regarding Attorney Discipline and Disability Proceedings; Section 2-39, Connecticut Superior Court Rules (Chapter 2); Rule 18, Delaware Lawyers’ Rules of Disciplinary Procedure; Section 11, District of Columbia Bar Rule XI; Rules 3-4.6, 3-7.2, Rules Regulating The Florida Bar; Rule 9.4, Georgia Rules of Professional Conduct and Enforcement Thereof; Rule 2.15, Hawaii Supreme Court Rules; Rule 513, Idaho Bar Commission Rules; Rule 763, Illinois Rules on Admission and Discipline of Attorneys; Rule 23, Section 28, Indiana Rules for Admission to the Bar and Discipline of Attorneys; Rule 35.18, Iowa Supreme Court Rules; Rules 202, 217, Kansas Supreme Court Rules; Rule 3.435, Kentucky Supreme Court Rules; Rule XIX, Section 21, Louisiana Supreme Court Rules; Rule 7.3(h), Maine Bar Rules

Title 16, Rule 773, Maryland Rules of Court; Rule 4.01, Section 16, Massachusetts Supreme Court Rules; Rule 9.104, Michigan Court Rules (Chapter 9); Rule 12(d), Minnesota Rules on Lawyer Professional Responsibility; Rule 13, Mississippi State Bar Rules of Discipline; Rule 5.20, Missouri Supreme Court Rules; Rule 27, Montana Rules for Lawyer Disciplinary Enforcement; Rule 21, Nebraska Disciplinary Rules; Rule 114, Nevada Supreme Court Rules; Rule 37(12), New Hampshire Supreme Court Rules; Rule 1:20-14, New Jersey Attorney Discipline Rules

Rule 17-210, New Mexico Rules Governing Discipline; Rule 603.3, New York Rules of Court (Appellate Division, First Dept.); Rule 806.19 , New York Rules of Court (Appellate Division, Third Dept.); Rule 1022.22, New York Rules of Court (Appellate Division, Fourth Dept.); Section .0116, North Carolina State Bar Rules and Regulations (Subchapter B); Rule 4.4, North Dakota Rules for Lawyer Discipline; Rule V, Section 11(F), Ohio Rules of Court Rules for the Government of the Bar; Title 5, App. 1-A, Rule 7.7, Oklahoma Statutes; Rule 3.5, Oregon State Bar Rules of Procedure; Rule 216, Pennsylvania Rules of Disciplinary Enforcement; Article III, Rule 14, Rhode Island Supreme Court Rules; Rule 29 of Rule 413, South Carolina Rules of Appellate Procedure; Section 16-19-74, South Dakota Statutes; Rule 9, Section 17, Tennessee Supreme Court Rules; Part IX, Texas Rules of Disciplinary Procedure; Chapter 14, Rule 22, Utah Court Rules; Rule 20, Vermont Permanent Rules Governing Establishment and Operation of the Professional Responsibility Program; Rule 13, Virginia Supreme Court Rules (Part 6); Rule 9.2, Washington State Court Rules: Rules for Enforcement of Lawyer Conduct; Rule 3.20, West Virginia Rules of Lawyer Disciplinary Procedure; Rule 22.22, Wisconsin Supreme Court Rules; Section 20, Wyoming State Bar Disciplinary Code.

[146] For discussions and examples of reciprocal discipline and its use, see Comment, “Reciprocal Discipline Meets Due Process,” 14 No. 2 Prof. Law. 8 (Winter 2003); Comment, “Reciprocal Discipline: Double Jeopardy or a State’s Right to Protect its Citizens?,” 25 J. Legal Prof. 143 (2001); Comment, “A Survey of Recent Case Law on Professional Responsibility and Criminal Procedure,” 31 How. L.J. 299 (1988).

[147] See, e.g., The Florida Bar v. Rendina, 583 So.2d 314, 315 (Fla. 1991) (referee is not bound by “technical rules of evidence”); Rule 3.5(B), North Dakota Rules of Lawyer Discipline (rules of evidence apply “insofar as appropriate” in lawyer discipline proceedings); Rule 2.17(L), Texas Rules of Disciplinary Procedure (admission or exclusion of evidence is at discretion of Evidentiary Panel and no ruling on evidence shall be reversed solely for failure to strictly comply with rules of evidence); Rule 10.14(d), Washington Rules for Enforcement of Lawyer Conduct (hearsay admissible at hearing officer’s discretion).

[148] Fed. R. Evid. 702 (West 2004).

[149] Fed. R. Evid. 704 (West 2004).

[150] SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1517 (10^th Cir. 1990).

[151] See, e.g., Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5^th Cir. 1983); Shahid v. City of Detroit, 889 F.2d 1543, 1547-1548 (6^th Cir. 1989).

[152] See, e.g., Hygh v. Jacobs, 961 F.2d 359, 364 (2d Cir. 1992); Shahid v. City of Detroit, 889 F.2d at 1548; Specht v. Jensen, 853 F.2d 805, 808 (10^th Cir. 1988).

[153] See Rodgers v. Comm’n for Lawyer Discipline, 151 S.W.3d 602 (Tex.App. 2004), at notes 42-48, supra, and accompanying text.

[154] See Section IV.A., supra.

[155] Rule 8, Alabama Rules of Disciplinary Procedure (costs); Rule 16, Alaska Rules of Disciplinary Enforcement (costs and attorney fees); Rule 60, Rules of the Supreme Court of Arizona (costs); Section 18, Procedures of the Arkansas Supreme Court Regulating the Conduct of Attorneys (costs); Article I, Section 6, Rules and Regulations of the State Bar of California (costs); Rule 251.19, Colorado Rules of Procedure Regarding Attorney Discipline and Disability Proceedings (costs); Sections 2-38 and 2-51, Connecticut Superior Court Rules (Chapter 2) (costs); Rule 27, Delaware Lawyers’ Rules of Disciplinary Procedure (costs); Section 3, District of Columbia Bar Rule XI (costs); Rules 3-7.6 and 3-7.11, Rules Regulating The Florida Bar (costs); Rule 2.3, Hawaii Supreme Court Rules (costs); Rule 506, Idaho Bar Commission Rules (costs); Rule 773, Illinois Rules on Admission and Discipline of Attorneys (costs); Rule 23, Section 16, Indiana Rules for Admission to the Bar and Discipline of Attorneys (costs); Rule 35.25, Iowa Supreme Court Rules (costs); Rule 224, Kansas Supreme Court Rules (costs); Rule 3.450, Kentucky Supreme Court Rules (costs); Rule XIX, Section 10.1, Louisiana Supreme Court Rules (costs and attorney fees); Rule 7.2, Maine Bar Rules (costs); Title 16, Rule 16-761, Maryland Rules of Court (costs); Rule 4.01, Section 23, Massachusetts Supreme Court Rules (costs); Rule 9.128, Michigan Court Rules (Chapter 9) (costs); Rule 15, Minnesota Rules on Lawyer Professional Responsibility (costs and attorney fees); Rule 27, Mississippi State Bar Rules of Discipline (costs); Rule 5.19, Missouri Supreme Court Rules (costs); Rule 7, Montana Rules for Lawyer Disciplinary Enforcement (costs); Rule 23, Nebraska Disciplinary Rules (costs); Rule 120, Nevada Supreme Court Rules (costs and attorney fees); Rule 37, New Hampshire Supreme Court Rules (costs); Rule 1:20-17, New Jersey Attorney Discipline Rules (costs); Rule 17-106, New Mexico Rules Governing Discipline (costs); Rule 605.13, New York Rules of Court (Appellate Division, First Dept.) (costs); Section .0105, North Carolina State Bar Rules and Regulations (Subchapter B) (costs); Rule 1.3, North Dakota Rules for Lawyer Discipline (costs); Rule V, Section 8, Ohio Rules of Court Rules for the Government of the Bar (costs); Title 5, App. 1-A, Rule 6.16, Oklahoma Statutes (costs); Rule 10.7, Oregon State Bar Rules of Procedure (costs); Rule 208, Pennsylvania Rules of Disciplinary Enforcement (costs); Article III, Rule 16, Rhode Island Supreme Court Rules (costs); Rule 19 of Rule 413, South Carolina Rules of Appellate Procedure (costs); Section 16-19-70.1, South Dakota Statutes (costs); Rule 9, Section 24, Tennessee Supreme Court Rules (costs and attorney fees); Part I, Rule 1.06, Texas Rules of Disciplinary Procedure (costs and attorney fees); Chapter 14, Rule 30, Utah Court Rules (costs); Rule 8, Vermont Permanent Rules Governing Establishment and Operation of the Professional Responsibility Program (costs); Rule 10, Virginia Supreme Court Rules (Part 6) (costs and attorney fees); Rule 5.7, Washington State Court Rules: Rules for Enforcement of Lawyer Conduct (costs); Rule 3.15, West Virginia Rules of Lawyer Disciplinary Procedure (costs); Rule 22.24, Wisconsin Supreme Court Rules (costs); Section 26, Wyoming State Bar Disciplinary Code.

[156] Section 2-38, Connecticut Superior Court Rules (Chapter 2); Rule 3-7.6, Rules Regulating The Florida Bar; Title 16, Rule 16-761, Maryland Rules of Court; Rule 10.7, Oregon State Bar Rules of Procedure.

[157] American Bar Association Model Rule of Professional Conduct 1.15(d) provides:

[158] American Bar Association Model Rule of Professional Conduct 7.1 provides:

[159] Of course, the respondent will have to show that the witness is qualified as an expert in the subject area, which here generally concerns lawyers’ professional ethics. Fed. R. Evid. 702. There should be no presumption as to an expert’s qualifications.

[160] Fed. R. Evid. 403 (West 2004) provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

[161] If the judge or hearing panel concluded that the only possible use of the testimony would be for mitigation purposes, the testimony could be deferred unless and until the hearing on sanctions following a guilty determination.

[162] See Section III.B., supra.

[163] See notes 155-156, supra, and accompanying text.