Court Rejects Expert Reports That Opined on the Law of Legal Ethics

On August 15, 2017, Justice Sherwood of the New York County Commercial Division issued a decision in Melcher v. Greenberg Traurig LLP, 2017 NY Slip Op. 31727(U), rejecting expert reports that opined on the law of legal ethics, explaining:

Questions as to the contours of a lawyer's ethical obligations to disclosure are issues of law and jury instruction on the applicable law are within the province of the court exclusively. The testimony sought to be admitted through the "expert" testimony of Patrick Conner and Roy Simon intrudes on areas reserved to the court and it is also likely to confuse the jury. The jury is being called upon to determine whether Leslie Corwin, an attorney, engaged in deceit or colluded with an intent to deceive the court or a party.

The jury is not being asked to resolve whether or not he violated the Code of Professional Responsibility (the Code) where the applicable standards are different than those involved here. Moreover, the concept of deceit is readily understandable and does not require interpretation by experts. Although evidence concerning the role of the lawyer in the adversary system may be useful background, issues as to whether and when a lawyer has an obligation to speak are legal questions reserved to the court. Expert testimony is neither helpful nor permitted. Accordingly, the motions to bar testimony of Patrick Conner and Roy Simon are granted with leave to submit revised reports that do not invade the province of the court and are shortened to reflect the limited role of such testimony as background.

(Internal quotations and citations omitted).