Ethics

     There?s an interesting column by Adam Liptak in today?s NYTimes about mercenary experts.  I have neither the inclination nor the time to make a judgment on the merits of the dispute between Bill Simon and Bruce Green, but that dispute does raise an important issue about law professors as experts on lawyers? ethics.  Based on experience, I have no doubt that a significant number of expert opinions on ethics have been tailored to fit the desires of the hiring lawyer.

     I wrote about this issue in ?Ethical Ends and Ethical Means,? 41 Jour. Legal Ed. 55, (1991), and in ?Trials of an Ethics Expert Witness,? Legal Times, May 23, 1994.  In the latter, I said: ?At one point, I considered proposing a special code of ethics for expert witnesses on lawyers? ethics.  But such a code would be redundant.... Model Rule 8.4(c ) ... proscribe[s] conduct involving dishonesty, fraud, deceit, or misrepresentation.  Also, a lawyer is forbidden by ... MR 3.3(a)(1) from making a false statement of fact or law to a tribunal.  Those provisions adequately preclude a lawyer from falsely presenting an advocate?s contentions as if they were the scholar?s own disinterested judgments.?

     I respect the position of Andy Kaufman, who will not serve as an expert witness, but I disagree with it.  I have enjoyed the challenge of being an expert witness, and I have learned a great deal from involvement in actual cases.  But I have seen too much of what I consider to be violations of MRs 8.4(c ) and 3.3(a)(1) to be unconcerned about the issue.