Expert Testimony on Legal Ethics Excluded
Posted on October 8, 2025 by Expert Witness Profiler
Robert I. Toussie alleged that he and his brother Michael entered into an agreement (the “Participation Agreement”) with Coastal Development, LLC (“Coastal”), an entity run by Richard Fields in 2000 to finance the development of casinos in Florida. However, Coastal/Fields promptly, and repeatedly, breached the terms of the Participation Agreement by not paying the Toussies their share of distributions from the casinos. In the early 2000s, the Toussies hired Williams & Connelly, LLP, Joseph G. Petrosinelli, David A. Forkner, Jonathan E. Pahl (“W&C Defendants”) to sue Coastal and Fields and recoup their participation interest.
In the early 2000s, the Toussies sued Coastal/Fields twice to recoup the missed payments, and, represented by W&C, successfully recovered more than $37 million—over ten times the Toussies’ initial investment.
In 2015, Coastal/Fields again stopped making payments owed to the Toussies, and W&C again sued Coastal/Fields on their behalf (the “2015 Coastal/Fields Litigation”), this time winning the Toussies a roughly $7.5 million arbitral award (the “Award”).
The Toussies confronted a choice of either accepting the proposed settlement or converting the $7.5 million arbitral award to a judgment and pursuing its enforcement. Defendants advised the Toussies on how to proceed with this choice, and the Toussies chose to pursue conversion and enforcement of the arbitral award rather than settle the Coastal Litigation.
Defendants’ advice and counsel in that regard is of what Plaintiff now complains as legal malpractice.
To prove his malpractice claim, Plaintiff proffered Professor Ronald J. Colombo as an expert “in the field of legal ethics and the practice of law.” However, Defendants filed motions to exclude Colombo from testifying at trial.
Law And Legal Expert Witness
Ronald J. Colombo developed his expertise through his legal education at New York University Law School, his practical experience as an associate at Sullivan & Cromwell and then as in-house counsel at Morgan Stanley & Co. Inc., and through his scholarly work as a law professor at the Maurice A. Deane School of Law at Hofstra University (“Hofstra Law”).
Colombo has taught several courses at Hofstra Law, served as a faculty advisor to student organizations and academic programs for students desiring to concentrate in business law, and published at least fifteen law review articles, two books, and contributed to at least two other books.
He has as a member of the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York in the past. His most recent law review article is Duties Regarding Duties.
Discussion by the Court
W&C Defendants, Colombo argued, fell short of the rules of the New York Rules of Professional Conduct in three ways: (1) Defendants did not conduct themselves with the ordinary and reasonable skill and knowledge commonly possessed by a member of the legal profession in undertaking their representation of Plaintiff (2) failing to properly advise Plaintiff on the consequences of pursuing a strategy of judgment enforcement against Fields and Coastal rather than accepting a settlement offer and (3) terminating W&C’s representation without proper notice.
Defendants argued that Colombo is not qualified because he has never held himself out as an expert in the practice of law or taught a legal ethics class, did not have a specialized education in legal ethics, and failed to demonstrate mastery of New York’s ethical rules in his own report. Defendants then argued that Colombo’s opinions are unreliable because they are unmoored from the underlying record, employ speculation, and misinterpret legal ethics opinions. Defendants lastly argued that Colombo’s opinions on W&C Defendants “engagement and withdrawal” are irrelevant because Plaintiff never alleged such harms in any of his complaints nor that such harms caused any damages.
I. Colombo Is Not A Legal Ethics Expert
Defendants argued that Colombo (1) lacks relevant experience, (2) lacks relevant education or training, (3) has too limited ethics-related experience, and (4) lacks relevant knowledge of the ethical rules themselves, and therefore is not qualified to testify as an expert in legal ethics. The Court agreed.
Colombo did not meet the requirements to be qualified as a legal ethics expert. His education, training, and practical experience all failed to distinguish him from other lawyers who only possess a general knowledge of legal ethics. First, Colombo is not a legal ethics expert by means of education or training. One professional responsibility course, one training for law firm associates, one training for FINRA arbitrators, and a three-year members on a local bar ethics committee constitute Colombo’s education and training in legal ethics. This is insufficient to qualify one as an expert. Plaintiff failed to show that Colombo has developed, much less maintained, an expertise in legal ethics. Colombo also cannot develop expertise through reading the case materials and treatises on legal ethics and professional responsibility.
Second, Colombo’s professional experience is insufficient. As an associate or in house counsel he did not represent a single client in any case, much less a malpractice action, and never advised a client or peer on issues of legal ethics and professional responsibility. As a professor, Colombo has never taught a course in legal ethics, and neither of his published books or book chapters addresses legal ethics.
His recent law article, Duties Regarding Duties, does not qualify him either. In fact, it furthers the argument that Colombo is only familiar with the world of corporate and securities law because the article instructs its readers on how to best advise members of institutional corporate boards not attorneys facing ethical legal questions or malpractice actions.
II. Colombo’s Opinions Are Irrelevant and Unreliable
A. Colombo’s Opinions Regarding Defendants Engagement and Withdrawal are Irrelevant
Defendants argued that Colombo’s opinions regarding their engagement and withdrawal as the Toussies’ counsel are irrelevant as “neither the second amended complaint nor any of the Toussie’s prior two complaints even mentioned purportedly improper circumstances of W&C’s engagement or withdrawal, much less challenged them as malpractice.”
Plaintiff brought this action complaining of receiving harmful legal advice. Neither W&C Defendants’ retention or withdrawal caused them to provide Plaintiff with the complained of advice. Plaintiff has not shown that the conditions surrounding his retention of W&C Defendants caused them to not more vehemently advise him against pursuing judgment enforcement. Plaintiff, instead, alleged that W&C Defendants did not properly calculate “the value or collectability of the Judgment.” W&C Defendants’ withdrawal could not have caused the alleged harm, because the alleged harm was already committed and completed by the time W&C Defendants withdrew their representation of Plaintiff. Colombo therefore failed to show how the substance of W&C Defendants’ advice was caused by the conditions surrounding their retention and withdrawal.
B. Colombo’s Opinion Regarding Defendants’ Legal Advice Is Unreliable
The Court agreed with W&C Defendants and found Colombo’s report to be unreliable for three reasons.
First, Colombo did not provide a reliable methodology. Colombo focuses on the standard of the “ordinary and reasonable skill of a member of the legal profession,” but this is only the standard for determining if an attorney’s conduct was negligent. Indeed, the violation of an ethical rule alone does not constitute a breach of fiduciary duty, much less malpractice.
Second, Colombo made several speculative leaps throughout his report. The Court also found Colombo’s musings that Plaintiff was an “atypical” client for W&C Defendants to be speculative.
Third, Colombo’s report conflicts with Plaintiff’s own admission. In his report, Colombo asserted that W&C Defendants failed to emphatically advise Plaintiff to settle rather than pursue judgment enforcement. In his report, however, Colombo quoted an email written by Plaintiff stating that Defendant Petrosinelli’s “response to me is, and always had been, settle.”
In sum, the Court found that Colombo is not qualified as an expert on legal ethics and the practice of law, and that his specific opinions in this case are irrelevant, unreliable, and therefore inadmissible.
Held
The Court granted the Defendants’ motions to exclude the testimony of Plaintiff’s proffered legal ethics expert, Ronald J. Colombo.
Key Takeaway:
Colombo’s factual errors in combination with his unreliable standard of care and use of speculation together warrant his proferred expert testimony to be stricken and deemed inadmissible in its entirety. Colombo’s report risks misleading a jury to believe that the violation of an ethical rule alone can constitute malpractice or a breach of fiduciary duty.
Case Details:
| Case Caption: | Toussie V. Williams & Connolly, LLP Et Al |
| Docket Number: | 1:20cv5921 |
| Court Name: | United States District Court, New York Eastern |
| Order Date: | September 30, 2025 |
