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Article Excerpt
INTRODUCTION
I. A BRIEF CRITIQUE OF WILLIAM SIMON'S THEORY OF LEGAL AND ACADEMIC PRACTICES A. An Outline of Simon's Theory B. Critiquing Simon's Theory of Law Practice 1. The duties of legal advisors 2. The duties of expert witnesses C. Critiquing Simon's Theory of Academics' Law Practice II. GLASS HOUSES AND IVORY TOWERS: SIMON'S IMPLEMENTATION OF HIS THEORY A. Background: The Nextel Settlement B. The Virtues of Client Information Control: Simon Privately Validates the Complaint C. Implementing the Theory: Simon Secures a Confidentiality Waiver D. The Virtues of Conventional Expert Practice: The Disclosures of Simon's Opinions 1. Simon's departures from Circular 230 2. The legitimacy of conventional norms E. Keeping Quasi-Third-Party Legal Advisors Accountable: Simon's Depositions F. The Perils of Practicing Law as an Extension of One's Scholarship: The Court Strikes Simon's Testimony G. Ultimate Accountability for "Quasi-Third-Party Academic Legal Advice": The Judge and Jury Reject Simon's Opinions III. ACADEMIC REGULATION OF ACADEMICS' LEGAL WORK: IS THERE A MARKET FOR BAD LEGAL SCHOLARSHIP? A. The Factual Unreliability of Academics' Regulatory Critiques B. The Legal Unreliability of Academics' Regulatory Critiques C. The Scholarly Triviality of Academics' Regulatory Critiques D. The Untested Market for Academics' Regulatory Critiques CONCLUSION
INTRODUCTION
William H. Simon (1) is a highly regarded law professor and legal theorist whose principal subjects include the legal profession. Much of his scholarship challenges conventional professional norms and practices. (2) His most recent article targets lawyers, especially law professors, who advise clients and serve as expert witnesses. (3) His basic premise is that some clients do not seek lawyers' accurate, honest views but want their lawyers to ratify their proposed or past conduct regardless of its lawfulness, and that law professors and other lawyers sometimes satisfy this market by giving "bad legal advice." To discourage lawyers from doing so, and to minimize the impact of lawyers' bad advice on third parties, Simon argues that lawyers should follow more rigorous standards of analysis, transparency, and accountability both when they give advice or expert testimony and when clients later use their legal work to influence others. He argues that legal academics practicing law should meet the most rigorous standards of all--including standards of transparency associated with the academy, not the legal profession (4)--and, further, that legal academics should regulate each other by "shaming" colleagues who practice badly. (5) In the abstract and at a level of generality, Simon's theory is appealing because it promises to hold lawyers to a higher standard of care for the public good. The question, however, is how Simon's proposal at a level of particularity would play out in actual law practice. This Reply argues that Simon overstates the problem, understates the significance of existing disincentives to giving erroneous advice, and offers a solution that is difficult to implement and would do more harm than good.
Ordinarily, it is hard to test theories challenging conventional modes of practice, but not in this case because, while writing his article, Simon engaged in legal work to which he could apply his theory. Specifically, in 2003, he became a litigation consultant and legal ethics expert witness on behalf of plaintiffs who were suing their former lawyers, the civil rights law firm of Leeds Morelli & Brown (LM&B), and he secured the plaintiffs' waiver of confidentiality and permission for him to write about their lawsuits. (6) Doing so accorded with his theory that when law professors give legal advice or testify as experts, they should envision their work as an extension of their legal scholarship, meaning that when practicing lawyers would conventionally maintain client confidences, law professors would publicly present and discuss their legal work as if they were debating legal theory in law journals and at academic conferences. At the same time, as an expert witness, Simon accumulated information about the legal work of opposing academic experts that he might use to critique the work of those who practice under the prevailing standards and expectations.
Simon's article, The Market for Bad Legal Advice, (7) presents his theory (8) and illustrates it by discussing McNeil v. Leeds, Morelli & Brown, one of the malpractice lawsuits in which he participated. Simon critiques the work of the three law professors on the opposite side of the litigation, of whom I was one. (9) Intending to be "provocative," (10) Simon accuses the others of giving "bad legal advice" both procedurally (because the process by which they developed and expressed their views departed from his theory) and, to a lesser extent, substantively (because he disagrees with their views on the law). (11)
Simon's accusation is provocative in the conventional sense: It is meant to get attention, and has already done so, (12) in part because of its one-sided factual account, (13) equally one-sided legal positions, (14) and personal attacks on Professor Geoffrey C. Hazard, Jr. and two other academic brethren. (15) But it is also provocative in another sense: In July 2007, two months before the lawsuit went to trial, Simon circulated a draft of the article to the law professors on the other side in a failed attempt to provoke a response from them, and then, in November 2007, before the trial concluded, he published it electronically. (16) In trying to provoke the defendants' experts, the article is, at once, an act of advocacy in a pending litigation and a stage of the ongoing experiment in which Simon put his theory into practice.
While claiming that the other three academics performed badly, Simon offers himself as a model of "desirable" legal and scholarly practices. (17) But events after Simon drafted the article cast doubt on this claim:
* The defendants accused him of professional misconduct for (among other things) securing the literary rights to the plaintiffs' story and writing and distributing his article about the litigation before trial. The plaintiffs' attorney declined to defend Simon's conduct, and the trial court struck Simon's expert testimony without opposition. (18)
* The legal positions that Simon had previously endorsed were rejected as a matter of law by the judge and as a matter of fact by the jury, which rendered a verdict for the defendants. (19)
* As soon as Simon published the article electronically, disinterested academics in the field of legal ethics questioned both the credibility of his article's discussion of the opposing experts and its thesis about how lawyers should practice. (20)
Thus, the quality of Simon's advocacy as a litigation consultant, the credibility of his expert opinions, and the value of his article as a work of scholarship, all suffered because, in accordance with his theory, he merged his professional and academic roles, ignored the conventional professional norms, and attempted to perform his legal work as if he were engaged in scholarship. If Simon's legal work was indeed an extension of his scholarship, it was bad legal scholarship with pernicious consequences for his clients.
This Reply explores Simon's theory and his implementation of it. Part I points out problems with Simon's theory about how lawyers, including academic lawyers, should perform legal work. Part II uses Simon's work as an expert witness in McNeil as a case study to test his theory. It shows that his theory did not withstand testing, not only because Simon's attempts to adhere to the theory harmed his clients, but also because, as committed as he was to the theory, Simon evidently found the theory imprudent to fully implement in practice. Whatever one may otherwise think of Simon's theory, his experiment in the practice of law thus proved it to be a failure.
Finally, Part III explores Simon's idea that academics should regulate their colleagues' legal work by publicly "shaming" those who perform badly. Simon uses his Article, in part, as a vehicle to shame Professor Hazard, who issued a written opinion with which Simon disagrees. Toward that end, Simon attempts to show that Hazard's opinion was "patently wrong on nearly every issue it addresse[d]." (21) Employing Simon's article as a case study, Part III argues that academic exercises in professional "shaming" make for both bad scholarship and bad regulation. Simon's critique of Hazard's legal work, for example, rests on a biased and incomplete account of both the facts and the law, and his disagreement with Hazard, largely based on a different set of factual understandings, is academically trivial. Given its limitations, one might wonder whether other scholars will engage in similar regulatory exercises and whether law journals will publish the results.
I. A BRIEF CRITIQUE OF WILLIAM SIMON'S THEORY OF LEGAL AND ACADEMIC PRACTICES
Simon's theory addresses two aspects of professional practice. First, it offers ideas about how lawyers in certain areas of practice should conduct their work. Simon's view is that lawyers, especially academic lawyers, whose legal advice or expert opinions may later become public, should have greater duties of candor, disclosure, and accountability than they now have. Second, Simon considers the work of legal academics in their scholarly role. His position is that legal scholars should critique their colleagues' legal practice, thereby performing a regulatory function. This Part raises questions about Simon's theory before turning in Parts II and III to Simon's own legal work and academic writing as case studies through which to test his theory. Subpart A outlines Simon's theory. Subpart B focuses on the duties he would impose generally on lawyers who serve as legal advisors or expert witnesses, premised on the duties now imposed on tax lawyers. Finally, Subpart C examines the further duties he would impose particularly on law professors who serve as legal advisors or expert witnesses, based on what he regards as informal academic norms.
A. An Outline of Simon's Theory
Simon addresses the professional work of lawyers and law professors and how it should be performed and regulated. He maintains that lawyers giving legal advice or serving as expert witnesses (among others) should have heightened duties of candor, disclosure, and accountability--comparable to, but exceeding, those imposed by IRS regulations on lawyers issuing formal tax opinions. Further, he maintains that lawyers rendering these services who are also law professors should have additional disclosure obligations derived from what he regards as the norms of academia. These disclosure obligations would facilitate the work of other academics in a new regulatory role he assigns them: "shaming" colleagues who perform their professional work badly. Needless to say, Simon's theory about how lawyers and law professors should practice law challenges conventional norms. Here is how Simon's theory unfolds.
First, Simon invents the term "quasi-third-party legal advice," which he defines to mean "legal advice in which lawyers purport to speak disinterestedly in order to influence public conduct or attitudes for the benefit of private clients, and which is given under conditions of nonaccountability and secrecy." (22) Various legal services, he argues, fall within this definition. Simon begins by offering two illustrations from legal ethics practice involving ethics professors' after-the-fact evaluations of law firms' professional conduct. (23) In each case, a professor issued an opinion stating that the law firm in question had acted properly, and the law firm then disclosed the opinion to defend its conduct in the press. Simon believes the opinions were wrong and that members of the public might have been influenced by the opinions in forming their own views at that stage, before legal proceedings against the law firms had commenced or gone very far. Simon then characterizes two additional areas of law practice as "quasi-third-party legal advice": legal advice and expert testimony. (24)
Second, Simon argues that lawyers providing "quasi-third-party legal advice" should depart from the conventional norms and practices in order to protect third parties or the general public. He says that these lawyers should adopt some version of the norms that IRS regulations known as Circular 230 impose on tax lawyers who provide private tax opinion letters. Like the tax laws and regulations generally, Circular 230 is complex. (25) It generally imposes obligations of candor, clarity, due diligence, analytical support, and reasonable framing. Simon thinks the legal services he targets are enough like tax opinions to warrant extending the IRS norms to them. But precisely because of the differences, Simon argues that a "quasi-third-party legal advisor" should additionally have a duty "to update [his opinion] in the light of new information where there is continuing reliance on the opinion." (26)
Finally, Simon argues that special rules should apply to law professors providing "quasi-third-party legal advice" because they benefit from the implicit imprimatur of their academic institutions. He says that these law professors should see their legal work as an extension of their scholarship, and they should perform their legal work in accordance with the professional norms that he thinks should apply to scholarly publications, not just those applicable to legal practice. His "basic norm" is that "[w]hen an academic publicly expresses a view as an expert or authorizes another to attribute an expert view to her, she should take care that the view be publicly accessible and clearly and accurately expressed, with its basis as fully stated as feasible." (27) To make her opinions "as readily accessible as possible," the professor should post them on a website, at least "[i]f she has substantial quasi-third-party practice." (28) Further, it is not only permissible but also "desirable" to carry into scholarship a debate that an academic "join[s] as a litigation consultant or expert" (29) even while litigation over the academic's opinion is ongoing. He maintains that academics should avoid confidentiality commitments that interfere with their ability to debate publicly their legal opinions. (30)
At bottom, Simon's theory strikes a new balance between clients' interest in controlling information and the interest in transparency to facilitate professional regulation. Lawyers are regulated through a variety of mechanisms, including the disciplinary process, civil and criminal liability, and informal regulation by their clients and other lawyers. These all depend on information about what lawyers are doing. But there is a tension between the regulatory interest in transparency and client confidentiality, which promotes the private and public interest in obtaining effective legal assistance. The rules of professional conduct, civil procedure provisions, and other laws strike a balance between the regulatory interests and competing public and private interests, (31) but they often favor the client's right to control information about the lawyer's representation. (32)
Simon's theory calls for greater transparency, particularly in the work of lawyer academics, in order to enhance regulation. With respect to academic lawyers, his aim is to establish a regulatory role for the legal academy and the law reviews. Simon assigns law professors a quality-control function, comprised of their "informal criticism and shaming" of colleagues who perform bad legal work. (33) To better enable law professors to serve this role, Simon demands greater transparency in situations where academic lawyers' work affects third parties: more disclosure in writings directed to clients that later may be viewed by third parties; earlier and broader public dissemination of academic lawyer work product; and public disclosure of their otherwise private views that raise questions about the ongoing validity of earlier work. In effect, Simon imports norms from two other regulatory regimes--the regulation of lawyer conduct in an area where client self-regulation is at its apex (i.e., tax advice) and the "regulation" of legal scholarship (as he perceives it)--and applies them to academic lawyers' work in other contexts.
B. Critiquing Simon's Theory of Law Practice
Even in the abstract, Simon's ideas about how lawyers and legal academics should practice seem questionable. Indeed, almost immediately after Simon published his article, John Steele posted a response criticizing Simon's theory as unworkable. (34) Among other things, Steele observed, the term "quasi-third--party advisor" obscures the differences among the various lawyer roles that Simon discusses; further, the transparency norms that Simon attributes to academic practice are at odds with the legal profession's confidentiality norms, making it hard to see how an academic lawyer can view his two roles as "continuous." (35) The following critique elaborates on Steele's insights and offers additional observations suggesting that Simon's proposed new norms of law practice are unwarranted and potentially destructive. It looks first, and most closely, at Simon's ideas about the obligations that legal advisors should assume. It then briefly examines Simon's ideas about the duties of legal expert witnesses, a subject explored in greater depth in Part II in the context of Simon's work as an expert witness in McNeil.
1. The duties of legal advisors
Simon's initial examples of "quasi-third-party legal advice" are after-the-fact legal ethics evaluations by Professor Wolfram in the Enron case and Professor Hazard in the Kaye Scholer case. It is understandable that Simon starts here because his theory is on firmest footing in the context of ex post legal evaluations that the client requests specifically for the purpose of influencing public opinion. Even so, one might question whether the standards that tax regulations set for tax lawyers providing opinion letters on the tax law need to be extended to lawyers who provide after-the-fact legal ethics evaluations. (36) In any event, such work is rare and is not Simon's main concern. The two types of legal work on which Simon focuses--ex ante legal advice and expert testimony--are distinct from legal evaluations like those with which Simon leads off.
Simon focuses especially on legal advice concerning a client's future conduct where the client expects to use "the lawyer's advice for support in the event the [client's] conduct is later challenged." (37) This might describe advice in any area of the law, but Simon offers legal ethics advice as his example. In general, professional norms encourage lawyers to secure legal advice about how to resolve uncertain questions of professional conduct. (38) Simon recognizes that the lawyer-advisor starts out "as a first-party legal advisor"--that is, he simply gives advice to a client. But Simon maintains that the ethics advisor should come to regard himself as a "quasi-third-party legal advisor" if "it becomes highly probable that the client will rely publicly on the advice." (39) By "publicly," Simon includes disclosure in litigation or in dealings with regulatory authorities, not necessarily in the media. (40) At that point, Simon argues, the lawyer should stop complying with "normal confidentiality obligations" and comply with the norms of candor and accountability derived in part from tax opinion writing. (41)
As discussed below, Simon's theory has several problems. First, his premise is vague: from a substantive perspective, it is unclear what he means by "bad" advice. Second, leaving aside contexts where reliance on counsel's advice provides a legal defense, Simon exaggerates the problem of "bad" advice: he is unpersuasive that substantively "bad" advice to clients causes harms to specific third parties or to the general public that must be redressed by revising professional norms, and he overlooks existing mechanisms of accountability. He also exaggerates the extent of the market for bad legal advice. Again leaving aside advice-of-counsel cases, it is questionable whether clients will demand "bad" legal advice and, even if they do, whether lawyers will supply it. Finally, whatever the magnitude of the public harm caused by bad advice and the size of the market for it, transplanting tax-opinion norms to a broader array of legal consulting practices would cause more problems than it could possibly solve. Simon's proposed changes to current professional practices would make legal advice prohibitively expensive for many clients and would significantly erode the guarantee of client confidentiality that historically has been regarded as essential to the effective legal representation of clients needing legal advice.
First, Simon's theory assumes there is a market for substantively bad advice, but Simon does not define "good" legal advice from a substantive perspective. (42) In the legal ethics context, for example, he does not explain whether a lawyer giving advice should aim to identify what the courts would say about how disciplinary rules and other laws apply to the client's proposed conduct, what disciplinary authorities would say, what informed members of the professional community would say (or themselves do), what legal ethics or academic experts in particular would say, or simply what the lawyer-expert believes in good faith. (43) Simon does not consider whether the answer differs depending, for example, on whether the lawyer-expert is giving a prospective opinion on which another lawyer might rely in fashioning future conduct or is expressing an expert opinion retrospectively in a malpractice lawsuit. Simon believes that he knows bad advice when he sees it, but his own views turn out to be idiosyncratic. (44)
Second, Simon is unpersuasive that the public harm caused by a lawyer's "bad" advice to his own client justifies rewriting professional norms to deter or expose bad advice. No doubt, lawyers sometimes express erroneous legal views. But Simon overstates the risk that third parties will detrimentally rely on a lawyer's erroneous legal advice to his client. Unlike third parties who are intended recipients of lawyers' opinion letters, third parties who learn incidentally of legal advice given to others face little risk precisely because they are not invited to rely in any legally meaningful sense. Interested parties will test the opinions.
Consider the legal ethics example. A law firm may justify challenged behavior by pointing to the advice it previously received. It will ordinarily do so, not in the media, but in litigation or in disciplinary proceedings. Malpractice plaintiffs' counsel or disciplinary authorities are sophisticated and skeptical and will have every reason to scrutinize and test the prior advice.
Nor does bad legal advice given privately to one's client generally provide a legal advantage that undermines the public interest more broadly. Simon does not focus on legal advice that may establish an advice-of-counsel defense or have some other potential legal effect. Here, his premise that deliberately erroneous legal advice to clients may prejudice third parties would be more compelling. But while noting that reliance on the advice of counsel may be a legal defense in some areas of legal practice, (45) Simon extends his theory to advice such as on legal ethics that provides no legal advantage (46) so that the likely victim of substantively bad advice is the client, not the public. (47)
Third, lawyers (including academic lawyers) who are inclined to give substantively bad advice presently can be held accountable through (and deterred by) formal and informal legal processes. Legal advisors are subject to civil liability and discipline. If clients rely to their own detriment on their lawyers' deliberately erroneous (and overly accommodating) advice, their lawyers may be civilly liable for malpractice. (48) If clients justify wrongful conduct by relying on erroneous advice in litigation, the lawyer who gave the advice risks embarrassment by having the advice criticized in a judicial opinion. Deliberately erroneous advice also may be a basis for professional discipline. Legal advice differs in these respects from an after-the-fact evaluation that the client invokes solely to influence public perceptions. Simon does not explain why existing mechanisms of accountability need to be enhanced or supplemented; nor does he make a persuasive case that legal advisors will become significantly more accountable via informal processes if they adopt the Circular 230 norms.
Fourth, Simon does not explain why, absent a potential advice-of-counsel defense, there should be a significant market for substantively "bad" first-party advice. (49) Although Simon analogizes to legal opinions given to third parties to induce them to enter into transactions (i.e., true "third-party opinions"), (50) the analogy is weak. For example, Simon does not explain why a rational lawyer-client would seek bad ethics advice with the expectation of using it to justify malpractice or disciplinary violations when, in the end, the cost of responding to allegations of misconduct is high and the prior advice does not provide a legal defense. Because lawyers are generally conservative about risk, there is an open market, not for erroneous and risky advice, but for legal advice about "risk management"--that is, about precautions useful to avoid running afoul of civil, criminal, or disciplinary law. This market is promoted by legal malpractice insurers and supplied by legal experts on lawyers' and law firms' professional conduct. Legal ethics advisors are more likely to counsel clients to stay far clear of the line than to provide opinions designed to ratify conduct that crosses the line. (51)
Even if bad advice is in demand, Simon does not explain why lawyers can be expected to supply it in the absence of more extensive disclosure obligations. The professional norms assume that lawyers are generally motivated to act ethically, and Simon has previously endorsed that assumption. (52) As a matter of professionalism, concern for their reputation, and long-term self-interest, lawyers might ordinarily be expected to resist temptations to give advice that they know or believe to be wrong. This is particularly true with respect to so-called quasi-third-party legal advice, which will be publicly disclosed and scrutinized by opposing parties. A result-oriented client would be far less likely to retain a pliable advisor than to seek a well-reputed expert whose honest opinion accords with the client's position. An expert who cultivated a reputation for telling clients what they want to hear would not have much credibility with regulators or other members of the relevant legal or professional community, and his advice would therefore have little value to a sophisticated client seeking to influence knowledgeable third parties.
Finally, Simon might argue that he does not need a compelling justification for placing greater demands on legal advisors, but this would overlook the countervailing interests underlying conventional practice. (53) Significantly, the norms of tax opinion writing would undermine clients' access to legal counsel by making garden-variety legal advice prohibitively expensive. Lawyers currently give legal advice in many forms to clients of various means, including low- and middle-income clients. Often, lawyers give oral advice or brief written advice predicated on their understandings of the facts and law. Whether lawyers provide a quick conclusion or an elaborate written opinion depends on many factors, including the complexity of the facts and law, the client's ability to afford time-consuming services, and the urgency and magnitude of the problem. Tax opinion letters, which are at the most demanding end of the spectrum, are extremely expensive. (54) Applying Circular 230 to legal advisors in other areas of the law would undermine the profession's efforts to make legal services affordable and accessible. (55) Many cannot afford an extensive written opinion when a quick conclusion will suffice, and even those who can do so will often be reluctant to seek one. (56) Ultimately, these norms would substantially reduce lawyers' role in promoting compliance with the law to both clients' and the public's detriment. (57)
Simon might respond that his proposal is not so onerous because it is not directed at a large category of legal advice but only at what he calls "quasi-third-party opinions." But this argument raises the definitional problem of distinguishing ex ante between first-party and so-called "quasi-third-party" advice. Whenever a lawyer advises a client that its proposed conduct is lawful, the lawyer can anticipate that if the conduct is later challenged, the client will point to the lawyer's advice to justify the conduct, whether or not the advice has a legal effect. Therefore, if this is what Simon means by "quasi-third-party opinions" that must be given in writing in accordance with Circular 230, virtually all advice would qualify. (58) Lawyers would have to end the practice of giving oral advice or sending brief writings describing how the legal lines are drawn or confirming that clients may lawfully engage in particular conduct. On the other hand, if Simon's definition is narrower, and refers exclusively to ex ante legal advice given at a time when the client unconditionally intends to make the lawyer's advice public in order to influence others, then Simon's theory has virtually no application. Clients often anticipate the possibility of having to refer to a lawyer's advice if conduct undertaken on the advice of counsel is later challenged, but that is conditional. When receiving the advice, the client's preference would be to avoid questions about how it acted and, therefore, to avoid any reason to disclose the lawyer's advice. In the exceptional situation where the client solicits the lawyer's ex ante advice intending unconditionally to rely on the advice but also to disclose the advice to others, the lawyer is unlikely to be aware of that intent. Under the narrower definition, the Circular 230-style obligations for issuing written opinions would rarely be triggered.
The definitional problem does not apply equally to the duty to update legal opinions because that proposed duty would apply only after the lawyer learns that his advice has been (or is highly likely to be) publicly disclosed. But this aspect of Simon's proposal raises additional practical problems. The practice would add further to the expense of rendering legal advice. Lawyers would have to increase their fees for legal advice in anticipation of the future obligation to update or correct their advice as necessary for the benefit of third parties. Since the practice is designed to benefit third parties, clients would have little motivation to pay for it in the future. Moreover, the practice would be logistically impractical since former clients would have little incentive to cooperate with former legal advisors' efforts to take account of how the advice is used and to learn new facts. (59)
Further, the duty could not be carried out without a new, and unwelcome, exception to the ethical duty of confidentiality. Simon assumes that when a lawyer's advice is or might be publicly disclosed, the attorney-client privilege is waived. (60) Even when this is so, the ethical duty of confidentiality generally survives. Without the client's consent after full disclosure, the former lawyer may not discuss the advice outside formal proceedings. (61) One might answer that lawyers should contract with clients in advance to allow the lawyer to discuss and update an opinion once it is placed in issue, (62) but such an agreement would likely be revocable when the time came to rely on it. (63) The current disciplinary rules would have to be amended to authorize lawyers voluntarily to discuss past advice, but the organized bar would legitimately oppose creating a new exception to the confidentiality rule that might discourage clients from seeking advice in the first place. Historically, both the bench and bar have valued confidentiality more highly.
Simon's impulse is laudable insofar as he aims to reduce the risk that clients will use their lawyers' erroneous legal advice to others' prejudice. But the devil is in the details. Simon's proposed change in how legal advisors practice is not justified. He is not persuasive that erroneous legal advice to clients poses serious harms to the public, that there is a significant demand for and supply of deliberately erroneous advice under existing norms, or that lawyers are not already sufficiently accountable when lawyers' erroneous advice to clients is publicly disclosed. Nor does Simon adequately take account of how more demanding norms will undermine clients' access to legal counsel or of other practical impediments to implementing his theory.
2. The duties of expert witnesses
Simon sweeps expert witnesses within the rubric of "quasi-third-party legal advisors," but he is mistaken. Expert testimony is not "legal advice" given "to influence public conduct or attitudes ... under conditions of non-accountability and secrecy." (64) Generally speaking, legal advice is advice that a lawyer gives to a client about how the law applies to the client's specific factual situation and on which the client may rely in shaping future behavior. Expert witnesses do not have clients, and they do not give prospective "legal advice"; they express disinterested opinions after the fact. They do not seek to influence public conduct or attitudes; they seek to assist judges and juries in making informed decisions. Their opinions are not secret but are disclosed in discovery and at trial, and they are accountable for their opinions through the litigation process. Some of the practical problems with Simon's theory, particularly as applied to expert witnesses, are exposed in Part II, which examines Simon's own role as an expert witness in the McNeil litigation. But even as abstract theory, Simon's argument that expert witnesses should practice comparably to tax advisors is unconvincing.
Like Simon's views on legal advisors, his views on expert witnesses suffer from various problems, beginning with the vagueness of his premise that there is...
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