1997-02
An attorney may pay an expert witness a reasonable and customary fee for preparing and providing expert testimony, but the expert’s fee may not be contingent on the outcome of the proceeding.
An attorney may pay an expert witness a reasonable and customary fee for preparing and providing expert testimony, but the expert’s fee may not be contingent on the outcome of the proceeding.
QUESTION:
Under what circumstances can an attorney pay a
witness
who offers testimony at trial or by deposition for an
attorney’s client?
ANSWER:
Witnesses who offer testimony at trial fall generally
into two categories, expert witnesses and lay or fact
witnesses. An attorney may pay an expert witness a
reasonable and customary fee for preparing and providing
expert testimony, but the expert’s fee may not be
contingent
on the outcome of the proceeding. An attorney may not pay a
fact or lay witness anything of value in exchange for the
testimony of the witness, but may reimburse the lay witness
for actual expenses, including loss of time or income.
DISCUSSION:
The prohibitions against paying fact witnesses and
against paying experts a contingency fee are found in Rule
3.4(b) of the Rules of Professional Conduct of the Alabama
State Bar, which provides that a lawyer shall not “offer an
inducement to a witness that is prohibited by law”.
However,
the Comment to this rule recognizes that the prohibition
does not preclude payment of a fact witness’s legitimate
expenses as long as such payment does not constitute an
inducement to testify in a certain way. This Comment is
consistent with DR 7-109 of the old Model Code of
Professional Responsibility which specifically authorized
a lawyer to pay “expenses reasonably incurred by a witness
in attending or testifying” and “reasonable compensation to
a witness for his loss of time in attending or testifying”.
Furthermore, payment to a fact witness for his actual
expenses and loss of time would constitute “expenses of
litigation” within the meaning of Rule 1.8(e).
Subparagraph
(1) of that section authorizes an attorney to “advance
court
costs and expenses of litigation, the repayment of which
may be contingent on the outcome of the matter”.
The situation may arise when an expert witness would
also be in a position to provide factual testimony in
addition to his paid expert testimony. Under these
circumstances, the attorney would not be ethically
precluded
from paying the witness, in his role as expert, his usual
and customary fee. However, caution should be exercised
that
the attorney does not pay the expert more than his usual
and
customary fee or pay him for more time than he actually
expended in preparing and providing his expert testimony,
since any excess or unusual fee could be construed as
payment for his testimony as a fact witness.
In summary, it is the opinion of the Disciplinary
Commission of the Alabama State Bar that an attorney may
pay a fact witness for actual expenses and actual loss of
income or wages as long as such payment is not made as an
inducement to the witness to testify in a certain way.
An expert witness may be paid his reasonable, usual, and
customary fee for preparing and providing expert testimony,
provided such fee is not contingent. This opinion is
consistent with previous opinions of the Disciplinary
Commission on similar or related issues in RO’s
81-549,82-699, and 88-42.
LGK/vf
10/29/97