What Would We Do Without “Experts”?

Over the last two days, the listserv of the Association of Professional Responsibility Lawyers (APRL) had been embroiled in a debate over ABA Model Rule of Professional Conduct 3.10 and its application to a hypothetical posed by a member. The association, which I belong to, includes law professors, ethics partners, CLE trainers, and ethics consultants, expert witnesses—pretty much all of the legal ethics experts in the United States.

There is no ABA Model Rule 3.10.

Eventually, after a lot of replies, someone figured out that the question really involved California’s Rule 3.10, which neither the ABA nor any other jurisdiction includes. The big clue was that the member who posted the hypothetical practices in California, though the state was not mentioned in the original post. Most of the responses to the post were also California lawyers, none of whom mentioned that this was an issue confined to their state.

Question: are these legal ethics experts unaware that the rule in their state is an outlier? Or is the Golden State such an impenetrable bubble that legal ethics experts there assume that its often bizarre sensitivities are the only ones that count?

[Perhaps relevant (or not): the lawyer who started the debate over the almost imaginary ethics rule includes mandatory pronouns in each post.]

2 thoughts on “What Would We Do Without “Experts”?

  1. Reading what I think is the text of Rule 3.10, it did not seem like something so exotic as to not exist elsewhere. The rule prohibits threatening to seek criminal or administrative penalties against an adversary purely to gain advantage a civil case. It basically discourages blackmail, though I haven’t evaluated the rule in detail.

    California is a large enough jurisdiction, that many lawyers may practice solely within it, and have no particular need to know in detail any other’s states rules. Not knowing that one part out of hundreds that doesn’t address a situation unique to California doesn’t exist elsewhere doesn’t seem like a major failing on anyone’s part. It is encouraging, in fact, that California lawyers were aware enough of their rules to be able to discuss it in the thread, even if everyone else was baffled.

    Click to access Rule_3.10-Exec_Summary-Redline.pdf

  2. Or, I guess, is the term “legal ethics expert” an oxymoron?

    I mean, when you debate what is essentially (at least in the context of the debate you describe) a non-existent model rule, and said rules are the actual subject matter of the alleged experts expertise, you have to wonder, don’t you?

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