Prospective opinions from an expert, that a lawyer violated the Rules of Professional Conduct when he loaned money to a client during certain business transactions, documenting the loans with promissory notes, were excluded from the collection action against the debtor by Judge Richard McNamara, sitting in the Merrimack County (New Hampshire) Superior Court Business Session. Order, May 16, 2012,
Murdock v. Nalbandian, 218-2008-CV-1062.
Murdock was treasurer or sole general partner of entities that loaned money to Nalbandian. Murdock eventually filed suit to collect. In response, Nalbandian alleged that Murdock violated the Rules when he entered into the contracts, and they were void as a matter of public policy as a result. The proffered expert so concluded.
In his ruling, Judge McNamara observed that:
- expert testimony is admissible when it will aid the jury in understanding the evidence or making a decision on a pertinent issue
- experts can testify on the ultimate issue in a case; but
- no witness, expert or otherwise, may testify to conclusions of law, as this would be inconsistent with the role of the judge and jury
- the Rules have the force and effect of law; and
- to determine whether a violation has occurred, one need look no further than the Rules themselves.
Finding that the expert’s testimony would “resonate as a lawyer’s closing argument rather than an expert analysis,” the judge ruled the testimony would usurp the role of the jury, and excluded most of the opinions.
