Can a lawyer pay a fact witness (not an expert) for the time the witness spends attending a deposition or trial, or meeting with the lawyer to prepare to testify?
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This page answers the general question as of 1996. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The committee answered whether a lawyer may compensate a non-expert witness for the reasonable value of time the witness spends preparing for or giving testimony at a deposition or trial. The starting point was Rule 3.4(b), which bars offering "an inducement to a witness that is prohibited by law," and Comment [3], which notes that paying a witness's expenses or compensating an expert is proper, while "the common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying."
Reading Comment [3] literally, the committee concluded that compensating a witness for lost time is neither paying an "expense" nor paying a "fee for testifying." It pointed to the predecessor provision, DR 7-109(C) of the Model Code, which expressly permitted "[r]easonable compensation to a witness for his loss of time in attending or testifying," and found nothing in the history of Rule 3.4 showing the drafters meant to negate that concept. The opinion also noted that such compensation is implicitly authorized by statutes such as 18 U.S.C. Section 201, which provides that paying a lay witness "the reasonable value of time lost" does not violate federal bribery law. The committee therefore concluded that payment for loss of time is not prohibited by Rule 3.4.
The committee saw no reason to distinguish time spent actually attending a deposition or trial from time spent in pretrial interviews preparing to testify, or from time spent reviewing and researching records germane to the testimony, as long as the lawyer makes clear that the payment is not for the substance or efficacy of the testimony or as an inducement to "tell the truth." Declining to follow a narrower reading in Pennsylvania Bar Opinion 95-126, the committee added one limit: the amount "must be reasonable, so as to avoid affecting, even unintentionally, the content of a witness's testimony." Where a witness shows direct lost income (lost wages or fees), reasonableness is easy to gauge; where the witness is retired or unemployed, the lawyer must determine the reasonable value of the time from all relevant circumstances.
Currency note
This opinion was issued in 1996, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a lawyer pay a regular fact witness anything for testifying?
A: The opinion concluded that a lawyer may pay a non-expert witness for the reasonable value of time lost in attending or preparing to testify, but not a fee for the testimony itself, and never an amount conditioned on its content.
Q: Does paying a witness for time count as the kind of "inducement prohibited by law" barred by Rule 3.4(b)?
A: No. The committee read Rule 3.4 and its predecessor DR 7-109(C), together with statutes like 18 U.S.C. Section 201, to permit reasonable compensation for a witness's lost time as distinct from paying a fee for testifying.
Q: Can the lawyer also pay for the witness's time spent preparing and reviewing documents, not just testifying?
A: Yes. The opinion extended the same treatment to pretrial interviews and to reviewing or researching records germane to the testimony, so long as the payment is not for the substance of the testimony and local law does not bar it.
Q: How is a "reasonable" amount determined for a witness who is retired or unemployed?
A: The committee said the lawyer must determine the reasonable value of the witness's time based on all relevant circumstances, since there is no direct lost income to measure.
Background and rules framework
The opinion interpreted Rule 3.4 (fairness to opposing party and counsel), specifically subsection (b)'s prohibition on inducements to a witness "prohibited by law" and Comment [3], reading them in light of the predecessor DR 7-109(C) of the Model Code. It treated reasonable compensation for a fact witness's lost time as permissible, distinct from a prohibited fee for testifying. Because the ABA interprets the Model Rules directly, there is no state-rule analogue.
Citations and references
Rules of Professional Conduct:
- MR 3.4 (fairness to opposing party and counsel; subsection (b) and Comment [3])
Statutes:
- 18 U.S.C. Section 201(j): payments to lay witnesses for the reasonable value of time lost do not violate the federal bribery statute
- 28 U.S.C. Section 1821: taxable witness costs in federal court
Other opinions cited:
- Pennsylvania Bar Op. 95-126 (1995): read the parallel state rule to disfavor compensating fact witnesses for preparation time; the committee declined to follow that narrower reading
See also
Source
- Landing page: ABA Formal Ethics Opinions index
- Original PDF: 96-402.pdf
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