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relationship with respondent. The American Bar Association
Standing Committee on Ethics and Professional Responsibility, in
Formal Opinion 97-407, at 1101:134 (1997), provided the following
guidance:
A lawyer who is employed to testify about requirements
of law or standards of legal practice, for example,
acts like any non-lawyer expert witness. The
testifying expert provides evidence that lies within
his special knowledge by reason of training and
experience and has a duty to provide the court, on
behalf of the other law firm and its client, truthful
and accurate information. To be sure, the testifying
expert may review selected discovery materials, suggest
factual support for his expected testimony and exchange
with the law firm legal authority applicable to his
testimony. The testifying expert also may help the law
firm to define potential areas for further inquiry, and
he is expected to present his testimony in the most
favorable way to support the law firm’s side of the
case. He nevertheless is presented as objective and
must provide opinions adverse to the party for whom he
expects to testify if frankness so dictates.
This formal opinion makes a distinction between an attorney’s
representation or advocacy of a client’s interests and an
attorney’s role as a consultant or expert witness.
The estate has argued that doing legal research and
providing legal opinions is the type of work that attorneys
usually perform for clients. The distinction made by respondent,
however, is that Mr. Harkavy did not represent the interests of
the IRS. Under that interpretation, Mr. Harkavy’s contractual
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