Even Judges Don't Know Everything: A Call for a Presumption of Admissibility for Expert Witness Testimony in Lawyer Disciplinary Proceedings
36 St. Mary's L.J. 825 (2004-2005)
54 Pages Posted: 29 Sep 2016
Date Written: 2005
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. 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 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 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. 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.
Keywords: Expert Witness Testimony, Lawyer, Attorney, Disciplinary Hearings
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