Thursday, January 31, 2008

Expert Witnesses In Bar Proceedings

A lawyer admitted to practice in 1955 was disbarred today by the Supreme Court of Washington. The court notes that the attorney is "no stranger to the disciplinary process" and that "the actions...mirror those in prior cases." The court rejected the suggestion that the attorney was denied the opportunity to call and examine expert witnesses:

"Mr. Burtch contends the hearing officer denied him the opportunity to call
expert witnesses to establish the standard of care in the legal industry and
interpretation of the RPC.  The WSBA argues that expert testimony on the RPC is
not admissible in disciplinary hearings.  Mr. Burtch was allowed to call Judge
Kirkwood, John Farra, and Steven Johnson as expert witnesses and was allowed
leniency to conduct questioning concerning their interpretations of the RPC.  Judge
Kirkwood's testimony was limited once it was established he has been retired from
the practice of law and the judiciary for 24 years.  John Farra's expert testimony
was limited after the hearing officer recognized that in a prior disciplinary
proceeding he asserted the position on behalf of Mr. Burtch that "'[i]t is obvious

that the rules of lawyer discipline are only general guidelines . . . .'"  In re Burtch,
112 Wn.2d at 21 (quoting Br. of Resp't at 14).  As we recognized in Mr. Burtch's
prior proceeding, the rules regulating a lawyer's conduct state the minimum level
below which no lawyer can fall, not general guidelines.  Because Farra did not
appear to respect this basic premise of our ethical rules, and Judge Kirkwood was
not familiar with current ethical standards, these witnesses may not have qualified as
experts and it was within the hearing officer's discretion to limit their expert
testimony.

       Under Evidence Rule (ER) 702, an expert may testify if the testimony would
assist the trier of fact.  The party calling the expert must demonstrate that the
witness qualifies as an expert based on 'knowledge, skill, experience, training, or
education.' ER 702.  Mr. Burtch called two lawyers and Judge Kirkwood as expert
witnesses, and was given the opportunity to demonstrate their expertise.  Neither
lawyer had a specialty in ethics or any other specialty that would assist the trier of
fact in this case, the hearing officer, also a lawyer."

In sum, the court states:

"In Mr. Burtch's previous disciplinary proceeding, we found that mitigating
factors and Mr. Burtch's profession of learning valuable lessons from the charged
misconduct justified leniency.  Burtch, 112 Wn.2d at 28.  It is regrettable that today
we are discussing another decade of misconduct and ethical violations for similar
behavior.  It is clear that Mr. Burtch did not take the opportunity given him in the
last proceeding to rectify his behavior and has caused further injury to his clients. 
The Board was correct in disbarring Mr. Burtch.  We uphold its decision." (Mike Frisch)

                                 

                                             

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