Toussie v. Williams & Connolly, LLP

              UNITED STATES DISTRICT COURT                               
              EASTERN DISTRICT OF NEW YORK                               
                       _____________________                             

                        No 20-CV-5921 (RER) (TAM)                        
                       _____________________                             

                         ROBERT I. TOUSSIE                               

                              VERSUS                                     

       WILLIAMS & CONNOLLY, LLP, JOSEPH G. PETROSINELLI, DAVID A.        
         FORKNER, JONATHAN E. PAHL, LUMPKIN & ASSOCIATES, PLLC,          
                       AND JONATHAN D. LUPKIN                            
                         ___________________                             

                        MEMORANDUM & ORDER                               
                              ___________________                        
RAMÓN E. REYES, JR., District Judge:                                      
    This is a legal malpractice action. Defendants have moved to exclude plaintiff’s 
proffered  legal  ethics  expert  from  testifying  at  trial.  (See  ECF  Nos.  138  and  142). 
Defendants argue that plaintiff’s proffered expert is not qualified and that his opinions are 
unreliable or irrelevant. (ECF No. 139 (“W&C Mem.”) at 9-25). Plaintiff opposes the 
motions. (See ECF No. 140 (“Pl. Opp’n”)). After carefully reviewing the record, and for the 
reasons set forth herein, defendants’ motions are granted, and plaintiff’s proffered expert 
is excluded from testifying at trial.                                     
                         BACKGROUND                                      
I.  Factual Background                                                   
    This action stems from a business arrangement gone sour, the roots of which 
reach back to 2000 when plaintiff Robert I. Toussie (“Plainitff”) and his brother Michael 
(collectively,  “the  Toussies”),  invested  $2.88  million  in  Coastal  Development,  LLC 
(“Coastal”), an entity run by Richard Fields (“Fields”). (Second Amended Complaint, ECF 
No. 47 (“SAC”) ¶¶ 14–15).1 That investment supported Coastal’s and Native American 
Development, LLC’s development of “two Hard Rock branded casino projects in Florida 
on land belonging to the Seminole Tribe of Florida.” (Id. ¶¶ 11–12). In return for their 
investment, the Toussies received an 11.7847% participation interest in the casinos. (Id. 
¶¶ 14, 15–18). The casinos provided distributions of tens of millions of dollars to Fields 

and Coastal, but they did not in turn pay the participation interest to the Toussies. (Id. ¶ 
22; Memorandum of Law in Support, ECF No. 139 (“W&C Mem.”) at 4).         
    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. (SAC at ¶ 23; W&C Mem. at 4). That 
litigation resulted in a February 2006 settlement agreement “in which Coastal and Fields 
agreed to pay the Toussies more than $10.6 million constituting [participation] payments 
then due [].” (SAC at ¶ 24). The settlement agreement also contained a provision requiring 
all future disputes concerning the Toussies’ participation payments be resolved through 

arbitration. (Id. at ¶ 23). Such an arbitration occurred in 2009 and resulted in an arbitral 
award of more than $27 million in the Toussie’s favor. (W&C Mem. at 4; ECF No. 139-12, 
¶ 9).                                                                     
    “In or about October 2015, Coastal and Fields stopped making [participation] 
payments to the Toussies.” (SAC at ¶ 48). Thus, in November 2015, the Toussies initiated 
the litigation that gave rise to their claims in this case (the “Coastal Litigation”) and 
thereafter hired the W&C Defendants and Lupkin & Associates, PLLC, Jonathan D. 


1 For a more thorough, albeit somewhat brief, recitation of the facts of the underlying business dispute, the 
Court refers the reader to Magistrate Judge Taryn A. Merkl’s report and recommendation dated July 26, 
2023. (ECF No. 113 (“Report and Recommendation”)).                        
Lupkin, and Rebecca C. Smithwick (“Lupkin Defendants”) to represent them. (SAC at ¶¶ 
50-54). The 2015 Coastal Litigation led to arbitration and a roughly $7.5 million arbitral 
award in favor of the Toussies. (Id. at ¶¶ 55-104). Plaintiff alleges that before the $7.5 
million arbitral award was converted to a judgment (W&C Mem. at 5), a significant secured 
creditor of Coastal and Field offered to settle the Coastal Litigation whereby the Toussies 

would receive monthly payments “in an amount not to exceed $41,470.56 per month” until 
April 2029. (Id. at ¶ 96; see also id. at ¶ 63, 91, 115). So, at that point in the Coastal 
Litigation, 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. 
(See ECF No. 139-4). Defendants advised the Toussies on how to proceed with this 
choice  (Pl.  Opp’n  at  9–12),  and  the  Toussies  chose  to  pursue  conversion  and 
enforcement of the arbitral award rather than settle the Coastal Litigation (SAC at ¶¶ 112–
13; W&C Defendants’ Rule 56.1 Statement Response, ECF. No. 139-3 (“W&C 56.1 
Resp.”) at ¶¶ 199–200). Defendants’ advice and counsel in that regard is of what Plaintiff 

now complains as legal malpractice.                                       
II.  Brief Procedural History                                            
    Plaintiff commenced the underlying legal malpractice action in New York State 
Supreme Court, Kings County on July 16, 2020. (State Court Summons, ECF No. 1, Ex. 
A). W&C removed the action to this Court on December 5, 2020. (Notice of Removal, 
ECF No. 1). After protracted litigation (see Report & Recommendation at 5–7), the Lupkin 
Defendants filed a motion to dismiss (ECF No. 55), and W&C Defendants filed a motion 
for summary judgment (ECF No. 69). Upon the recommendation of Magistrate Judge 
Taryn A. Merkl, and without objection from any party, the Court granted Defendants 
motions in part and “(1) dismiss[ed] Plaintiff's legal malpractice claim insofar as it was 
styled as a failure to object to the arbitration award, as that claim has been abandoned; 
(2) dismiss[ed] Plaintiff's fiduciary duty claim as duplicative; and (3) den[ied] the motions 
as to Plaintiff's negligent advice claim. . ..” (ECF Court Order Adopting Report and 
Recommendation dated 08/11/2023).                                         

    Following the close of discovery (ECF No. 122), Defendants filed pre-motion 
conference letters for anticipated summary judgment motions as to Plaintiff’s remaining 
claims. (ECF No. 123, 127).  In the interim, the case was reassigned to the undersigned. 
(See Order dated 12/20/23). After reviewing the papers, this Court determined that a pre-
motion conference was unnecessary and directed Defendants to commence motion 
practice on the discrete issue of excluding Plaintiff’s proffered legal ethics expert. (ECF 
Order Dated 03/05/2024).2 Defendants’ motions to exclude were filled, fully briefed, on 
May 17, 2024. (ECF Nos. 138-144).                                         
 III. Plaintiff’s Proffered Expert                                       

    To prove his malpractice claim, Plaintiff proffers Professor Ronald J. Colombo as 
an expert “in the field of legal ethics and the practice of law.” (W&C Defs.’ Mot., ECF. 139-
2, Ex. 1 (“Prof. Colombo Report”)). Prof. Colombo offers his opinion based on the 
expertise he developed 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”). (Prof. 
Colombo Report at 4–5; Pl. Opp’n at 12). Plaintiff and Prof. Colombo both emphasize 


2 The Court held the proffered summary judgment motions in abeyance pending its decision on the motions 
to exclude. (ECF Order Dated 03/05/2024).                                 
Prof.  Colombo’s  prior  three-year  experience  as  a  member  of  the  Committee  on 
Professional and Judicial Ethics of the Association of the Bar of the City of New York 
(“New York City Bar Ethics Committee”) some twenty years ago, and his most recent law 
review article, Duties Regarding Duties. (Prof. Colombo Report at 4–5; Pl. Opp. at 12–
13). Upon further inspection, the Court also notes that since 2006 Prof. 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.  (Prof.  Colombo  Report,  App.  C).  The  vast  majority  of  Prof. 
Colombo’s academic work has focused on corporate law, the law of religious liberty, and 
the interactions of the two. (Id.) Virtually none of his experience involves legal ethics, 
either generally or specifically.                                         
    Prof. Colombo opens his report with a quote encapsulating his view that W&C 
Defendants and Lupkin Defendants failed to properly advise Plaintiff as to the purported 
settlement, “What we’ve got here is failure to communicate.”3 (Prof. Colombo Report at 

2). Prof. Colombo then goes through his analysis of how Defendants, especially W&C 
Defendants, fell short of the obligations set by five rules of the New York Rules of 
Professional Conduct: Rules 1.0, 1.4, 1.14, 1.16, and 2.1. (Prof. Colombo Report at 5–
15). W&C Defendants, Prof. Colombo argues, fell short of these rules 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” (Prof. Colombo Report at 17); (2) failing to properly advise 


3 COOL HAND LUKE (Warner Bros. 1967).                                     
Plaintiff on the consequences of pursuing a strategy of judgment enforcement against 
Fields  and  Coastal  rather  than  accepting  a  settlement  offer  (id.  at  18-33);  and  (3) 
terminating W&C’s representation without proper notice (id. at 33-35). Prof. Colombo 
opines that the Lupkin Defendants fell short of their ethical obligations only for failing to 
properly advise Plaintiff but not for problematic conditions surrounding their retention and 

withdrawal. (Prof. Colombo Report at 18–33; Colombo Deposition, ECF No. 139, Ex. 7 
(“Colombo Dep.”) at 191:5–195:10) These failures led Prof. Colombo to conclude that 
Defendants did not act with the “ordinary and reasonable skill and knowledge” of a 
member of the legal profession. (Prof. Colombo Report at 35–37).          
 IV. Defendants’ Motion to Exclude                                       
    Defendants challenge the admissibility of Plaintiff’s sole expert witness at all three 
prongs of the Daubert analysis. (See generally W&C Defs.’ Mem.). They argue that Prof. 
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, does not have a specialized education in 

legal ethics, and failed to demonstrate mastery of New York’s ethical rules in his own 
report. (Id.) Defendants then argue that Prof. Colombo’s opinions are unreliable because 
they are unmoored from the underlying record, employ speculation, and misinterpret legal 
ethics opinions. (Id. at 17–22). Defendants lastly argue that Prof. 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. 
(Id. at 24).                                                              
    Plaintiff opposes Defendants’ motion by arguing that Prof. Colombo is qualified, 
and that Defendants arguments are “strawmen” logical fallacies. (Pl.’s Opp’n at 16–25). 
Plaintiff avers that Prof. Colombo is qualified because he is an expert on the specific 
ethics rules at issue in this case, such as Rule 1.4 and 2.1. (Id. at 20). Plaintiff then argues 
that it is Defendants’ arguments that are irrelevant because they build five strawmen to 
attack Prof. Colombo but fail to rebut his actual opinions. (Id. at 22–25). The Plaintiff bears 
the burden of proving that his proffered expert witness will be helpful to a jury. Plaintiff, 

here, has failed to convince this Court that Prof. Colombo will do so.    
                          DISCUSSION                                     
 I.  Legal Standard                                                      
    The determination of whether testimony is admissible as an expert opinion is multi-
factored and flexible, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592–94 (1993), 
and a trial judge has “considerable leeway” in determining whether to admit expert 
testimony, Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). See also United 
States v. Jones, 965 F.3d 149, 161–62 (2d Cir. 2020) (district court's decision to admit or 

exclude expert testimony is reviewable for abuse of discretion and will be overturned only 
where decision was “manifestly erroneous.”)                               
    The determination of whether to admit expert testimony is guided by Rule 702 of 
the Federal Rules of Evidence. E.g., United States v. Gatto, 986 F.3d 104, 117 (2d Cir. 
2021). Rule 702 requires a proponent to establish by a preponderance of the evidence 
that:                                                                     
    (a) the expert's scientific, technical, or other specialized knowledge will help the 
    trier of fact to understand the evidence or to determine a fact in issue; (b) the 
    testimony is based on sufficient facts or data; (c) the testimony is the product of 
    reliable principles and methods; and (d) the expert's opinion reflects a reliable 
    application of the principles and methods to the facts of the case.  
Fed. R. Evid. 702; United States v. Raniere, No. 18-CR-204-1 (NGG) (VMS), 2019 WL 
2212639, at *6 (E.D.N.Y. May 21, 2019) (“The burden is on the party proffering the expert 
to  demonstrate  that  the  expert  testimony  is  admissible  by  a  preponderance  of  the 
evidence.”) (citing United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007)).  
    In considering Rule 702’s application, the court must determine if: (1) the witness 

is qualified to testify as an expert on a particular matter, (2) the opinion is based on reliable 
data and methodology, (3) the expert’s testimony is relevant to the matter, and (4) the 
expert’s testimony complies with Fed. R. Evid. 403. Boateng v. Bayerische Motoren 
Werke  Aktiengesellschaft,  No.  17-cv-209  (KAM)(SIL),  2022  WL  4357555,  at  *10 
(E.D.N.Y. Sept. 20, 2022); Glowczenski v. Taser Intern., Inc., No. 04-CV-4052 (SJF) 
(WDW), 2012 WL 976050, at *4 (E.D.N.Y. Mar. 22, 2012) (citing Nimely v. City of New 
York, 414 F.3d 381, 397 (2d Cir. 2005)).                                  
    The Supreme Court has made clear that under Rule 702 district courts play a 
“gatekeeping” function: they are charged not only with ensuring that proffered witnesses 

are experts within the meaning of the Rule, but also that their “testimony both rests on a 
reliable  foundation  and  is  relevant  to  the  task  at  hand.”  Daubert  v.  Merrell  Dow 
Pharmaceuticals, 509 U.S. 579, 597 (1993). And “the gatekeeping inquiry must be tied to 
the facts of a particular case.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 
(1999). “The decision whether to admit or exclude a proposed expert's testimony is 
committed to the Court's broad discretion.” Kogut v. Cnty. of Nassau, 894 F. Supp. 2d 
230, 239 (E.D.N.Y. 2012); see also Kumho Tire Co., 526 U.S. at 152.       
 II.  Prof. Colombo Is Not A Legal Ethics Expert                         
    A court must first determine if a proffered expert is qualified by their “specialized 
knowledge, skill, experience, training, or education.” Brown v. Mermaid Plaza Assocs., 
LLC, 13-CV-760 (AMD) (CLP), 2016 WL 5802779, at *6 (E.D.N.Y. July 20, 2016), adopted 
by 2016 WL 5716414 (Sept. 30, 2016) (citing Nora Beverages, Inc. v. Perrier Grp. Of Am., 

Inc., 164 F.3d 736, 746 (2d Cir. 1998)). A court makes that determination by comparing 
“the area in which the witness has superior knowledge, education, experience, or skill 
with the subject matter of the proffered testimony.” Hamraz v. Diversified Maint. Sys., 
LLC, 18-CV-1864 (RER), 2023 WL 5200282, at *3 (E.D.N.Y. Aug. 14, 2023) (citing United 
States v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir. 2004)). The witness’s expertise should 
be “closely related” to the area of the proffered opinions. Id. (quoting In re M/V MSC 
FLAMINIA, No. 12 Civ. 8892, 2017 WL 3208598, at *4 (S.D.N.Y. July 28, 2017)).  
    Defendants argue that Prof. 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. (W&C Defs.’ Mot. at 9–16). While Plaintiff argues that Prof. 
Colombo has a wealth of practical experience to draw from, Defendants emphasize the 
fact that Prof. Colombo was never considered a legal ethics expert in any of those 
previous positions. Indeed, Prof. Colombo had to seek advice from others on legal ethics, 
never represented or advised his own clients, never taught a legal ethics course, is not a 
member of his own institution’s legal ethics center—the Freedman Institute for the Study 
of Legal Ethics—and has only taken basic, introductory level courses and trainings on 
legal ethics. (Id. at 10–13).                                             
 Plaintiff argues that Defendant construes Rule 702’s qualification requirement too 
narrowly. (Pl. Opp’n at 21). Prof. Colombo is qualified, according to Plaintiff, because his 
experiences in private practice, as in-house counsel, and as a law professor all contribute 
to his expertise. (Id. at 20). Indeed, Prof. Colombo’s recent article on corporate legal 
ethics analyzed Rules 1.4 and 2.1. (Id.) Plaintiff then argues that Defendants failed to 

address Prof. Colombo’s opinions but rather constructed five “strawmen” arguments that 
cherry pick statements from Prof. Colombo’s report but fail to address his substantive 
arguments. For example, Plaintiff avers that Defendants incorrectly argued that Prof. 
Colombo relied on ABA Opinion 500 when Prof. Colombo stated that he was drawing 
from the underlying principles of that opinion. Considering the parties arguments and their 
evidentiary submissions, the Court finds that Professor Colombo is not qualified as an 
expert in legal ethics and the practice of law.                           
    Prof. Colombo does not meet the requirements to be qualified as a legal ethics 
expert. His education, training, and practical experience all fail to distinguish him from 

other lawyers who only possess a general knowledge of legal ethics. First, Prof. 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 Prof. 
Colombo’s education and training in legal ethics. (Prof. Colombo Dep. at 25:13–27:3).4 
This is insufficient to qualify one as an expert. See Cicero v. Borg-Warner Automotive, 
Inc., 163 F. Supp. 2d 743, 748 (E.D. Mich. 2001) (rejecting a proffered expert who was a 
law professor and taught six different classes but failed to provide information that he 


4 The cases on which Plaintiff relies do not convince the Court otherwise. 
“maintain[ed] an up-to-date expertise in any of them.”). Here too, Plaintiff failed to show 
that Prof. Colombo has developed, much less maintained, an expertise in legal ethics. 
Prof. Colombo also cannot develop expertise through reading the case materials and 
treatises on legal ethics and professional responsibility. See Watkins v. Frito-Lay, Inc., 
2023 WL 11909257, at *10 (N.D. Ga. Mar. 31, 2023) (“Given Dr. Batra’s lack of training, 

education, and experience…he relied heavily on scientific literature to support his opinion 
on general causation. That itself is problematic.”) (citing United States v. Paul, 175 F.3d 
906, 912 (11th Cir. 1999) and Trilink Saw Chain LLC v. Blount, Inc., 583 F. Supp. 2d 1293, 
1304 (N.D. Ga. 2008)).                                                    
 Second, Prof. 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. (Prof. Colombo Dep. at 18:6–19:20; 107:5–23). As a professor, Prof. 
Colombo has never taught a course in legal ethics, and neither of his published books or 

book chapters addresses legal ethics. (ECF 139-2, Appendix C (“Prof. Colombo CV”); 
Colombo Dep. at 22:11–22; 23:19–25:12; 27:4–16). Indeed, he is not even a member of 
his own institution’s Freedman Institute for the Study of Legal Ethics. (Prof. Colombo Dep. 
at 22:23–23:5). Put simply, Prof. Colombo’s academic expertise is in corporate and 
securities law, while laudable, has with no overlap with legal ethics. (See Prof. Colombo 
CV). His recent law article, Duties Regarding Duties, does not qualify him either. In fact, 
it furthers the argument that Prof. 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. (ECF No. 139-10; Colombo Dep. at 40:9–45:18). Prof. Colombo therefore lacks 
the education, training, and experience to qualify him as an expert in legal ethics and 
professional responsibility. This lack of expertise manifests itself in Prof. Colombo’s 
unreliable and irrelevant opinions.                                       

 III. Prof. Colombo’s Opinions Are Irrelevant and Unreliable             
    Even were the Court to consider Prof. Colombo a qualified expert in legal ethics 
and professional practice, his testimony would have to be excluded as his opinions are 
irrelevant and unreliable.                                                
    When considering the admissibility of expert testimony under Rule 702, “the focus, 
of course, must be solely on principles and methodology, not on the conclusions that they 
generate.” Daubert, 509 U.S. at 595. However, the court does not have to admit expert 
testimony where there exists “too great an analytical gap between the data and the 
opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (citation omitted). 

Also, the court need not admit expert testimony that is irrelevant. Gatto, 986 F.3d at 117; 
Binns-Harty-Bolt v. McDonough, 21-CV-7276 (PAE) (BCM), 2024 WL 4817253, at *2 
(S.D.N.Y. Nov. 18, 2024) (“Expert evidence that is not relevant to a party’s claims or 
defenses is inadmissible and may be excluded prior to trial.”) (citing Daubert v. Merell 
Dow Pharmaceutircals, Inc., 509 U.S. 579, 597 (1993)).                    
 A.  Prof. Colombo’s Opinions Regarding Defendants                       
    Engagement and Withdrawal are Irrelevant                             

    Defendants  argue  Prof.  Colombo’s  opinions  regarding  their  engagement  and 
withdrawal as the Toussies’5 counsel are irrelevant as “[n]either the SAC nor any of the 

5 In his report, Prof. Colombo posits that W&C Defendants’ dislike of Plaintiff led them to place conditions 
on their continued representation which they failed to disclose to Plaintiff (Prof. Colombo Report at 16–17), 
Toussie’s prior two complaints even mentioned purportedly improper circumstances of 
W&C’s engagement or withdrawal, much less challenged them as malpractice.” (W&C 
Mem. at 24). Plaintiff does not appear to respond to this argument. (See Pl.’s Opp’n at 
22–25). Regardless, the Court agrees that this is an irrelevancy. The circumstances 
surrounding Defendants entry and exit as the Toussies’ counsel has nothing whatsoever 

to do with their alleged malpractice during their service as counsel.     
    Plaintiff brings this action complaining of receiving harmful legal advice. (SAC at 
¶¶ 110–138). 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, alleges that W&C 
Defendants did not properly calculate “the value or collectability of the Judgment.” (Id. at 
¶ 111). 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. Prof. Colombo therefore failed to show how the 
substance of W&C Defendants’ advice was caused by the conditions surrounding their 
retention and withdrawal.                                                 
 B.  Prof. Colombo’s Opinion Regarding                                   
    Defendants’ Legal Advice Is Unreliable                               

    Prof. Colombo failed to use a reliable methodology to provide his opinions and also 
included speculation as to factors contributing to the breakdown in Plaintiff and W&C 
Defendants  attorney-client  relationship.  Because  Prof.  Colombo  used  unsupported 

and that W&C Defendants’ withdrawal prejudiced Plaintiff because it was made to be effective immediately 
without notice or prior discussion to possibly avoid withdrawal (id. at 33–34). 
methodologies—or lacked a clear methodology—the Court finds that his opinions are 
unreliable and inadmissible.                                              
    Prof. Colombo describes the “Relevant Legal Standards and Principles” in Part II 
of his report. (Prof. Colombo Report at 5). There he states that an “important factor” in 
determining  if  a  defendant  committed  legal  malpractice  is  the  “degree  to  which 

defendants’ conduct during their representation…adhered to the applicable standards of 
professional conduct” and lists Rules 1.0, 1.14, 1.16, and 2.1 (Prof. Colombo Report at 
5). Prof. Colombo “supplement[ed]” those standards with his own personal experience. 
(Id. at 6).                                                               
    Defendants  argue  that  such  a  methodology  is  unreliable  because  it  is  not 
supported by the record, involves speculation, and rests on insufficient facts and data. 
(W&C  Defs.’  Mot.  at  16–22).  Among  other  things,  W&C  Defendants  highlight  Prof. 
Colombo’s use of ABA Opinion 500 and Rule 1.14 to show that his methodology veers 
far from that of legal ethics experts. (W&C Defs.’ Mot. at 21–22). Lastly, W&C Defendants 

argue that Prof. Colombo failed to demonstrate, beyond conclusory statements, how his 
personal experience informed his expert opinions. (W&C Defs.’ Mot. at 22–24). 
    Plaintiff responded by arguing that W&C Defendants used the logical fallacy of 
strawman arguments to paint Dr. Colombo’s opinions as unreliable. (Pl. Opp’n at 22–25). 
The burden of proof, however, is on the plaintiff, and Plaintiff, here, failed to provide an 
affirmative case for why Prof. Colombo’s methodology was reliable by a preponderance 
of the evidence.                                                          
    The Court thus agrees with W&C Defendants and finds Prof. Colombo’s report to 
be  unreliable  for  three  reasons.  First,  Prof.  Colombo  does  not  provide  a  reliable 
methodology. Prof. 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. Yang v. Pagan Law Firm, 
P.C., 75 Misc.3d 757, 760 (N.Y. Sup. Ct., N.Y. Cty 2022) (citing Guiles v. Simser, 35 

A.D.3d 1054, 1056 (2006) and Weintraub v. Phillips, Nizer, Benjamin, Krim & Ballon, 172 
A.D.2d 254 (1991)) (citations omitted); Jiau v. Hendon, No. 12 Civ. 7335 (PAE), 2014 WL 
559004, at *6 (S.D.N.Y. Feb. 12, 2014) (collecting New York state cases); see also 
Restatement (Third) of the Law Governing Lawyers § 52(2). Under New York law, a 
malpractice action has four elements: (1) an attorney-client relationship existed giving rise 
to a duty of care; (2) the attorney breached the duty of care; (3) the attorney’s negligence 
proximately  caused  the  plaintiff’s  loss;  and  (4)  the  claimant  sustained  actual  and 
ascertainable damages. Id. at 760 (citing AmBase Corp. v. Davis, Polk & Wardwell, 8 
N.Y.3d 428 (2007) (citation omitted). Prof. Colombo’s report therefore risks misleading a 

jury to believe that the violation of an ethical rule alone can constitute malpractice or a 
breach of fiduciary duty. Thus, both Rule 702 and Rule 403 counsel this Court to exclude 
Prof. Colombo’s report for failure to provide a reliable methodology.     
    Second, Prof. Colombo makes several speculative leaps throughout his report. 
The Court finds Professor Colombo’s uses of ABA Opinion 500 (“Op. 500”), Rule 1.4, and 
Rule 1.14 to both require speculation. Indeed, Op. 500 is not only interpreted incorrectly, 
it is inapplicable because it was not in effect until 2021—years after Defendants withdrew 
their representation. As to Rules 1.4 and 1.14, Prof. Colombo ignores the plain language 
of both and attempts to impugn Defendants through those rules’ underlying principles. 
Prof. Colombo’s use of such purported principles however is without legal authority and 
therefore speculative.                                                    
    The Court also finds Prof. Colombo’s musings that Plaintiff was an “atypical” client 
for W&C Defendants to be speculative. Prof. Colombo primarily bases his atypicality 
allegation on the fact that Petrosinelli’s Federal Elections Commission’s disclosures 

reveal that he donated to Joe Biden’s campaign, (Prof. Colombo Report at 16), and that 
Plaintiff  stated  his  support  for  Donald  Trump,  routinely  made  brash  comments  and 
references, and comes from the Long Island real estate industry. (Prof. Colombo Report 
at 16, 27). Petrosinelli, therefore, experienced a culture clash that prevented him from 
properly retaining and communicating with Plaintiff as required by the New York Rules of 
Professional Conduct. Prof. Colombo concedes, however, that he is not aware of a 
“typical” client for W&C Defendants nor is he aware of several attorneys in leadership 
positions within W&C who worked in the Trump administration. (Prof. Colombo Report at 
27;  Colombo  Dep.  at  93:22–111:9).  Even  more,  Prof.  Colombo  concedes  to  using 

speculation in this portion of his report. (Colombo Dep. at 94:2–94:7) (“I speculate in my 
opinion based on the record and based on what I know about attorneys and based on 
how Mr. Toussie comes across in his deposition[.] I speculate that he’s not the most 
typical person that most of the Williams & Connolly attorneys typically deal with.”). Prof. 
Colombo also failed to show that researching an individual’s political donations to learn if 
an attorney has a different political ideology than their client is an accepted or newly 
innovative method used by legal ethics experts to support a malpractice claim. For these 
reasons, the Court deems Prof. Colombo’s allegation that Plaintiff was an “atypical” client 
for W&C Defendants to be speculative and inadmissible.                    
    Third, Prof. Colombo’s report conflicts with Plaintiff’s own admission.6 In his report, 
Prof. Colombo asserts that W&C Defendants failed to emphatically advise Plaintiff to 
settle rather than pursue judgment enforcement. In his report, however, Prof. Colombo 
quotes an email written by Plaintiff stating that Defendant Petrosinelli’s “response to me 
is, and always had been, settle.” Prof. Colombo attempts to downplay Plaintiff’s statement 

by relying on Michael Toussie stating in his deposition that he believed Plaintiff was 
“exaggerating.” Those attempts are futile and devoid of supportive evidence. Indeed, Prof. 
Colombo’s report also includes a May 3, 2017 email in which Defendant Pahl describes 
both options and states that the option for settlement “provides a clearer path forward.” 
To be sure, departures from the factual record go to the weight of the evidence rather 
than admissibility. Still, the Court finds that Prof. 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.  


                          *    *    *                                    

    In sum, the Court finds that Prof. 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. Defendants’ motions are granted.  




6 The Court notes that Prof. Colombo was only provided a “Statement of Assumed Facts” but not the 56.1 
Statement on which to base his opinions. His opinions are therefore even weaker as they did not adequately 
account for which facts are truly undisputed by all parties.              
                          CONCLUSION                                     
    For the reasons set forth above, Defendants’ motions to exclude the testimony of 
Plaintiff’s proffered legal ethics expert are granted.                    
    SO ORDERED.                                                          
    Hon. Ramón E. Reyes, Jr. Digitally signed by Hon. Ramón E. Reyes, Jr. 
                          Date: 2025.09.30 16:33:03 -04'00'              
    ___________________________                                          
    RAMÓN E. REYES, JR.                                                  
    United States District Judge                                         

    Dated: September 30, 2025                                            
          Brooklyn, New York