Expert testimony is required in almost all professional malpractice cases. But expert testimony is not offered in most lawyer discipline cases. What explains this discrepancy? Should experts testify more often in discipline cases?
Experts may testify where they have “specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue, . . ..” Rule 702, Minn. R. Ev. Except in rare and obvious cases, professional malpractice statutes and case law require expert affidavits and testimony. Malpractice cases that are not settled are usually tried to juries. Lay persons need help in learning professional practices and standards, deviations from these, and causation of damages.
The “specialized knowledge” contemplated by Rule 702 increasingly characterizes the practice of law. The Minnesota Board of Legal Certification reports about 1,000 lawyers as certified specialists in ten fields of law. Certification requires passing an examination on ethics law as well as substantive and procedural law.
Some lawyer discipline cases are presented to three-member Lawyers Board panels. One or two members are not lawyers. Public members may find expert testimony helpful. Lawyer members may find expert testimony helpful regarding an unfamiliar area of law. Expert testimony may be especially useful in admonition appeals, where panels conduct the only evidentiary hearing.
Whether a lawyer’s conduct was “reasonable” is often at issue in discipline cases. Terms such as “reasonable” and “reasonably” appear over 400 times in the Rules and Comments. OLPR has recognized, “For purposes of imposing lawyer discipline, Rule 1.0(i), MRPC, defines ‘reasonable’ or ‘reasonably,’ when used in relation to conduct by the lawyer, to mean the conduct of a reasonably prudent and competent lawyer. While not an overly helpful definition, this plainly views the term from a lawyer’s perspective and not from that of a client.”[i] “A lawyer’s perspective” and community standards for prudent and competent lawyers are subjects suitable for expert testimony.
Experts have been used in discipline cases, by both the Office of Lawyers Professional Responsibility (OLPR) and by respondent attorneys. Review of a dismissal and three appeals of private admonitions will show how experts have been used in private matters.
OLPR dismissed an ethics matter in 2007, although the Minnesota Supreme Court had found “pervasive” and “unprecedented” prosecutorial misconduct. The respondent attorney offered testimony from an expert, a former county attorney. In a memo explaining the dismissal, OLPR gave “fair weight” to this testimony several times, especially as to whether any misconduct was in bad faith. For example, the memo reasoned, "Respondent's retained expert opined [on certain matters] ... and, therefore, a good faith basis existed to believe they [certain items of evidence] may be admissible.”
One admonition appeal arose in a family law context. OLPR and the respondent lawyer both submitted expert testimony. OLPR’s expert testified that respondent’s position, “demonstrates a lack of understanding of the rules and the standards of practice in the Twin Cities legal community, the nature of prejudice to a client and an attorney’s duties as an officer of the court.” In affirming the admonition, the Supreme Court cited and relied on this expert testimony. Matter of Panel File 96-35, 570 N.W.2d 499, 501-2 (Minn. 1997).
A second admonition appeal arose in a debt collection case. Expecting a default hearing and having a limited fee budget, a partner told a young associate (“A”) not to spend time reviewing the whole file before a proceeding. However, the alleged debtor appeared and defended by alleging that another court had already found in defendant’s favor. Evidence of the prior action was in A’s file, but A had not read that part of the file. The presiding judge filed an ethics complaint. OLPR issued an admonition, charging that A acted without “preparation reasonably necessary for the representation,” in violation of Rule 1.1. After hearing, a Lawyers Board panel dismissed the charge, finding that OLPR failed to present evidence of what was reasonable in the circumstances.[ii] OLPR needed an expert.
A third admonition appeal arose in the context of settlement offers. The respondent attorney (R) represented a defendant who reached an oral settlement agreement. A co-defendant, M, was represented by a lawyer (L) who was employed by a law firm that was a captive of an insurance company. Plaintiff made a settlement offer to M that produced a conflict for L. R received a call from M and answered M’s questions about the settlement offer. L filed an ethics complaint, alleging that R violated Rule 4.2 by communicating with a represented party on the subject of the representation. R’s defense included argument that, due to the conflict, the scope of L’s representation of M did not include the settlement offer. At the Panel hearing, R’s expert was allowed to testify, over OLPR’s objection, as to the conflict and its limitation on the scope of L’s representation. A divided Panel affirmed the admonition. R’s appeal is pending in the Minnesota Supreme Court. In re Panel File No. 47155.
In public discipline proceedings, expert testimony is common regarding mitigation claims. Experts often testify, both for respondent and OLPR, without objection, when respondent alleges that misconduct was caused by a disability, such as chemical dependency or depression. They testify as to the existence of the disability, its severity, its causal relation to the misconduct, and the attorney’s recovery. Also as to mitigation, experts may testify regarding whether respondent’s conduct was affected by stress.
Legal complexities can be good subjects for expert testimony. In one case, “Both Peterson's and the director's expert witnesses testified that the agreement did not create an effective pooled trust.” In re Peterson, 718 N.W.2d 849, 856 (Minn. 2006). In another case, experts for OLPR and the respondent testified on whether a key document was “misleading.” This testimony was probative, “The referee found that Strid did not knowingly make a false statement of fact or law, nor did he engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Based on these findings, the referee concluded that the Director failed to show by clear and convincing evidence that Strid violated Rules 3.3(a)(1), 4.1 and 8.4(c), and recommended that the petition be dismissed.” In re Strid, 551 N.W.2d 212 (Minn. 1996). These rules involve the lawyer’s alleged state of mind.
Where an attorney’s state of mind is the central issue, expert testimony can be very important, especially where allegations depend on inference. For example, in a criminal prosecution of a lawyer, the lawyer’s state of mind, in dealing with a corrupt client, was crucial. A trial court was found to have erroneously excluded a defense expert, who would have testified that, “because of the duty of loyalty, lawyers ‘tend to very strongly believe [their] clients and, at least in the civil bar, lawyers ‘tend not, by and large, to be immediately suspicious of [clients] if they ask us to do things.” United States v. Kellington, 217 F.3d 1084, 1190 (9th Cir. 2000).
In a 2016 Minnesota discipline case, the central issue was whether a prosecutor “knowingly” violated discovery rules, by not producing certain documents. In re Olson, File A16-0280. “Knowingly” denotes “actual knowledge,” which “may be inferred from circumstances.” Rule 1.0(g), MRPC. As with “reasonable,” the term “know” and its cognates appear hundreds of times in the MRPC. As with the criminal doctrine of “turning a blind eye,” inferences as to a lawyer’s knowledge are based on what is “obvious.” Cmts. to Rules 1.13, 3.3, 4.2.
What is “obvious” to lawyers in a particular practice area and in particular circumstances? Olson offered expert testimony, from Robert Small, a very experienced prosecutor, judge, and professor of evidence. Objecting to the expert, OLPR argued, “The referee is well-versed in the Rules of Criminal Procedure, and any expert testimony is not necessary and would simply be an unnecessary consumption of time.” The referee overruled OLPR’s objection.
Mr. Small opined that the governing law was unclear to reasonable lawyers. Small also opined that Olson reasonably relied on the advice of three lawyers that production of the documents was not required. OLPR did not call an expert witness.
In addition to expert testimony, opinion testimony became important in Olson. Rule 701 allows non-expert opinion testimony if it is “rationally based” and “helpful.” On cross-examination, OLPR asked opinion questions of Mr. Small, of local lawyers, and of a judge. They testified that the law was “murky,” rather than “obvious,” and that Olson reasonably relied on other attorneys. After trial, the referee - expressly relying in part on opinion testimony - recommended dismissal. Pursuant to stipulation, OLPR’s petition was dismissed.
In summary, expert testimony is helpful and therefore admissible in discipline cases where scientific and technical matters are at issue, and in specialized practice areas, especially where the trier of fact is not expert in relevant issues. In addition, expert testimony will often be helpful in close cases involving charges that a lawyer acted unreasonably or knowingly, especially where inference is argued to prove state of mind. To determine what is clearly and convincingly “reasonable,” or “knowing,” or “obvious” in certain circumstances, testimony of an expert may be helpful. In contrast, in many discipline matters, where misconduct falls far below well-known professional standards, expert testimony will normally not be needed except, perhaps, as to mitigating circumstances. Non-expert opinion testimony will sometimes be helpful to the tribunal, as it was in Olson.
[i] Martin A. Cole, Managing Expectations, Bench & B. of Minn., July 2012 (emphasis added).
[ii] For further discussion, see Chuck Lundberg’s article in the Oct. 3, 2011 Minnesota Legal Ethics Blog.