Then there’s the arrow that reads, “Willingness to say what we need to win the case.”

It doesn’t happen often, but it does pay well and can be interesting: occasionally I accept an engagement as a testifying ethics expert in a law suit. I have a rule, however, that surprisingly (or not) seems to come as a shock to many potential clients. They may be buying my opinion, but they are not necessarily buying the opinion they want. After I review the facts, documents and issues involved, I will render my opinion, but no promises. I won’t take a case unless I generally agree that the theory of the side hiring me is plausible, but after all the facts are in and I’ve done my analysis, if the case of the client whose lawyer hired me is weak, I will say so.

Strangely, some lawyers seem to have a problem with this, even when the expert insisting on integrity is an ethics expert. I am currently in settlement mode with a law firm that hired me to render my opinion regarding the billing submitted by another firm to the law firm’s client. Part of their argument, in claiming malpractice against the billing firm, was that its billing was excessive, unreasonable and inflated, a violation of  Rule 1.5 of the Rules of Professional Conduct governing lawyers. I reviewed the billing statements, and they could have been inflated—some of the methods of stating who did what work was vague, and there sure was a lot of work billed on the matter, by an astounding number of lawyers—-but I could only assess that to a level of certainty sufficient to be certain in my own mind, much less state it under oath, if I could examine what all that work produced. This the law firm that hired me refused to produce, perhaps because the time it would have taken me to review it thoroughly would have been very expensive. But how could I decide whether the amount of money billed for a product was unreasonable without being able to determine what the product was? I couldn’t. Thus my written opinion stated what I could say honestly and with authority: based on the billing statements and the materials I was allowed to review,  I could only speculate on whether the billing was proper or not. It was possible. More than that, I could not say.

The law firm was not happy, although they never spoke to me about it. The firm just settled the case, and never paid me. (My very reasonable fee for services was $6,000, and if you’ve ever spent much time reviewing legal billing statements, you would know that they got off cheap.) You see, it didn’t really want an ethics expert, or an independent expert, or an honest, informed, professional analysis. They wanted a pre-determined opinion, bought with cash, delivered to specifications. Well, they won’t get that from me.

Welcome to the world of “expert witnesses.”