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Ethics Traps for the Unwary #7: Using Expert Witnesses in Attorney Discipline Cases in Maryland

By: George S. Mahaffey | 2.17.20 | Media

We defend various professionals in Maryland, the District of Columbia, and Virginia, including lawyers and law firms.  Many of these cases are ethics matters involving Bar Counsel. In litigating and trying cases against Bar Counsel in Maryland, we have frequently been faced with the decision of whether to call ethics expert witnesses at trial. This post discusses the rules and case law concerning experts, and some of the issues that arise when considering whether to call such witnesses at trial. 

The General Rule Regarding Expert Testimony

Pursuant to Maryland Rule 5-702 "expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue." In determining whether expert testimony should be admitted, the rule provides a three-prong test: (1) whether the expert witness is qualified, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony. Id.

The Use of Expert Testimony in Attorney Discipline Cases

Experts on various issues of law are routinely called by both sides in attorney discipline trials in Maryland. Defense attorneys call legal experts to testify about whether the respondent-attorney violated any of the Maryland Rules of Professional Conduct and/or the applicable standard of care. 

Bar Counsel has also used expert legal testimony in support of claims of alleged violations of the Maryland Rules of Professional Conduct since at least the 1980s. See AGC v Kerpelman, 292 Md. 228, 438 A.2d 501 (1986) (Bar Counsel was allowed to call an expert witness regarding domestic legal practice who testified regarding the reasonableness of a legal fee in a domestic case); AGC v. McClain, 373 Md. 196, 817 A.2d 218 (2003) (Bar Counsel was allowed to call an expert witness in real estate law, who testified that attorney's mistakes in conducting foreclosure sale constituted incompetence); AGC v. Johnson, et al, 409 Md. 470, 976 A.2d 245 (2009) (Bar Counsel was allowed to call David Kochanski, a Maryland real estate law attorney, as an expert witness to testify regarding standard practices for real estate transactions). 

More recently, in 2016, the Court of Appeals upheld the trial court's acceptance of Bar Counsel's expert legal testimony from an immigration attorney regarding respondent immigration attorney's diligence and competence in representing clients. AGC v. Chanthunya, 446 Md. 576, 590, 133 A.3d 1034, 1042 (2016). The Court opined that the expert was sufficiently qualified and had a sufficient factual basis for her opinions based on her review of documents pertaining to the representation. Id.

Issues to Consider When Contemplating the Use of Ethics Experts

While both sides routinely use legal experts in attorney discipline cases, in our experience, Bar Counsel will often seek to strike legal/ethics experts in cases that it views as not overly complex. The argument will essentially be that in non-complex cases, expert testimony will not assist the trier of fact under Rule 5-702. While we strongly disagree with this argument, especially since complexity is often subjective, practitioners need to be aware of the potential trap of calling ethics experts in cases where Bar Counsel will argue the matters at issue are simple and straightforward. 

If you have received a letter from Bar Counsel or a client has filed a complaint with the Attorney Grievance Commission, or you are currently defending a Petition for Disciplinary Charges, we can help. Contact the author, George Mahaffey, for assistance in addressing your concerns.