Expert Testifying on Standard of Care Needn't Be Specialist in Particular Field

By Lance J. Rogers  

A legal ethics expert's opinion that lawyers mishandled a wrongful termination lawsuit by falling short of the standard of care generally expected of lawyers in civil matters should have been ruled sufficient for the plaintiff to overcome the lawyers' motion for summary judgment in a malpractice action, the District of Columbia Court of Appeals ruled Dec. 8 (Crawford v. Katz, D.C., No. 09-CV-301, 12/8/11).

In an opinion by Judge Inez Smith Reid, the court overturned summary judgment for the defendant lawyers, rejecting the argument that noted ethics expert Geoffrey C. Hazard Jr. was disqualified from giving an opinion on the applicable legal standards expected in the matter because he is not an expert in employment law.

Hazard was qualified to give his opinion that the attorneys here failed to meet the standard of care generally expected of all lawyers involved in civil negotiation and litigation, Reid explained. Therefore, Reid added, it didn't matter that in rendering his opinion Hazard referred to testimony expected—but never delivered—from an expert in employment litigation.

Resignation or Termination?

Dwight W. Crawford sued the now-defunct firm of Bernabei & Katz and several individual lawyers for malpractice. Crawford claimed that the defendants first mishandled the negotiation of a severance package with his former employer, Black Entertainment Television Services Inc., and then bungled the ensuing wrongful termination lawsuit.

Crawford claimed, among other things, that he was fired after he discovered the company was engaged in fraudulent tax practices.

He asserted that he was forced to accept an unfavorable settlement after his lawyers committed a series of miscues. For example, he alleged that attorney Alan Balaran wrote a memorandum and letter to BET's president that undermined Crawford's position in the ensuing lawsuit by implying that the termination was actually a voluntary resignation.

Attorney Debra Katz, he claimed, not only failed to alert him to the problems created by the references to his “voluntary resignation” but also misjudged the strength of his wrongful termination claims and strong-armed him into settling.

He also faulted the lawyers for pressing a litigation strategy that accused BET of serious financial wrongdoing and triggering a sanctions motion from BET which Crawford claimed created a conflict of interest for his lawyers.

Missing Expert

The trial court granted summary judgment for several of the defendants on the ground that the testimony of Crawford's expert witness, University of Pennsylvania Law School Emeritus Professor Geoffrey C. Hazard Jr., did not adequately set out the applicable standard of care for lawyers who handle employment disputes.

According to the trial court, Hazard's testimony was inadequate, in part, because his opinion was based on the assumption that the plaintiff would also retain an expert on employment law, which the plaintiff did not do. That expert presumably would have testified about a number of issues, including Crawford's eligibility for stock options and the significance of the terminated-versus-resigned distinction.

The appellate court reversed and remanded, ruling that Hazard's opinion on the standard of care did not hinge on anticipated testimony from an employment law expert and was on its own strong enough to defeat the summary judgment motion.

The trial court, it said, “inadvertently overlooked, did not address, or misinterpreted key aspects of this case discussed in Professor Hazard's opinion letter and his explanatory deposition.”

Professional Norms

Although Hazard is not an expert in employment litigation, Reid noted, he is an expert on the issue of professional ethics in civil litigation and was qualified to testify to the professional norms that apply in all civil litigation, including negotiating and litigating wrongful termination claims.

The fact that Crawford's severance negotiations involved cashing in a stock option plan did not mean that Hazard needed to be an expert in employment law to offer an opinion on the standard of care for an attorney assisting a client with that particular type of negotiation, the court said.

It is true that Hazard prefaced his opinion by stating that he understood an employment law expert would testify that the “voluntary resignation” characterization seriously compromised the wrongful termination litigation, the court said. But Hazard outlined a number of areas in which he concluded that Crawford's lawyers “fell short in representing him as negotiators and litigators,” it added.


Hazard, it noted, opined that the lawyers had a duty to warn Crawford of the potential sanctions issues that would crop up if his lawyers aggressively pursued the allegation that BET had engaged in financial misconduct. He also suggested that the lawyers may have crossed the line by indicating that they did not find their client believable and were inclined to abandon his cause if he didn't settle.

Finally, the court said, Hazard concluded that the legal communication with BET's management “would be embarrassing” regardless of whether the letter used the terms “resignation” or “voluntary departure,” since Crawford maintained that he was wrongfully discharged or fired.

This mischaracterization departed substantially from recognized standards of professional conduct, Hazard said in his deposition, “because a lawyer in negotiation should present the client's claims and contentions in as reasonably positive terms as are consistent with provable facts.”

Booth M. Ripke and Larry A. Nathans, Nathans & Biddle, Washington, D.C., represented Crawford.

Balaran was represented by Justin M. Flint and Aaron L. Handleman, Eccleston & Wolf, Washington. Katz and the Bernabei & Katz law firm were represented by D. Stephenson Schwinn, Jordan Coyne & Savits, Washington, and Reid M. Weinstein, Washington.

Elizabeth Treubert Simon and Pamela A. Bresnahan, Vorys, Sater, Seymour and Pease, Washington, represented defendant Lynne Bernabei.

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The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and BNA.

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