The Ethics of Experting

I have only in the last year or two really done much experting (I mostly spent my time counseling firms to avoid problems, when I'm not teaching, writing, speaking, or just hanging).  Frankly, I've seen some people that I respect, or respected, say some things that just are flat wrong, and that they would never say in public.

Perhaps I'm Polly-Anna-ish (sp?), but when it comes to ethics, saying things in an ethics report that are flat wrong -- that you would never say in public -- seems, well, unethical.

Just an observation, but I wonder if the rest of  you have noticed?  I know that sometimes we are blinded by our own views, but I've read some real doozies.

Any thoughts?

Comments

[Andrew Perlman]

For a good start on this topic, see here: http://legalethicsforum.typepad.com/blog/2008/07/bill-simons-rej.html.

[Monroe Freedman]

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. The latter article said in part:

Stuart Taylor has written an article in American Lawyer, “Sleazy in Seattle,” about a case involving dishonest discovery tactics designed to cover up smoking-gun documents, and about the expert testimony that sought to justify the tactics. I have also seen expert testimony that directly contradicts what the expert himself has written in a treatise or article on ethics.
I once talked with an ethics professor about a colleague who often seems to be serving as an advocate, rather than giving his true opinion, when testifying as an expert. I disapproved, saying that the roles are significantly different -- that there are arguments that I could readily make as an advocate that I couldn't present under oath as my expert opinion. But the other professor demurred. In his view, our colleague and I simply have a "philosophical difference" about whether an expert witness is nothing more than a advocate who happens to be sitting in a witness chair.
At one point, I considered proposing a special code of ethics for expert witnesses on lawyers' ethics. But such a code would be redundant. Both the Model Code of Professional Responsibility (1969) and the Model Rules of Professional Conduct (1983) proscribe conduct involving dishonesty, fraud, deceit, or misrepresentation. DR 1-102(A)(4); MR 8.4(c). Also, a lawyer is forbidden to make a false statement of fact or law to a tribunal. DR 7-102(A)(5); MR 3.3(a)(1). Those provisions adequately preclude a lawyer from engaging in the kinds of improper conduct described in the American Lawyer article, or from falsely presenting an advocate's contentions as if they were the scholar's own disinterested judgments.