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St. Mary's Law Journal

Abstract

Today's practice environment is full of potential ethical pitfalls for even the most conscientious lawyer. The consequences of being found guilty of misconduct can include suspension or disbarment from practicing as a lawyer. 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. 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. Unfortunately for the accused lawyer, the answer to whether such testimony can be admitted is not clear. Most jurisdictions leave this question to the discretion of the judge or panel trying the case. In addition, the relatively few jurisdictions which have directly addressed this question take differing approaches. Lawyers facing charges that could result in the loss of their livelihood should be afforded every reasonable opportunity to defend themselves. 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. Admitting expert testimony relating to how ethics rules are 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, will be a strong step in the right direction. A presumption for the admissibility of expert testimony offered by the accused in a lawyer discipline case should be adopted. The result will be a fairer process, more informed decisions, and, ultimately, a better disciplinary system.

Publisher

St. Mary's University School of Law

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