Can a lawyer pay a witness, and can an expert witness's fee be contingent on the outcome?

Plain-English summary

The Disciplinary Commission addressed when an attorney may pay a witness who testifies at trial or by deposition. It divided witnesses into two categories. 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 (lay) witness anything of value in exchange for the testimony, but may reimburse the fact witness for actual expenses, including loss of time or income.

The opinion grounded the prohibitions in Rule 3.4(b), which bars a lawyer from offering a witness an inducement prohibited by law. It noted the Comment recognizes that this does not preclude paying a fact witness's legitimate expenses, as long as the payment is not an inducement to testify in a certain way, consistent with the prior Code's DR 7-109 authorizing payment of a witness's reasonable expenses and compensation for lost time. The opinion observed that such payments to a fact witness for actual expenses and lost time are "expenses of litigation" within Rule 1.8(e), which allows a lawyer to advance court costs and litigation expenses with repayment contingent on the outcome.

The opinion addressed the case where an expert can also give factual testimony. There the attorney may still pay the witness, in the expert role, the usual and customary fee, but should be careful not to pay more than the usual fee or for more time than the expert actually spent preparing and providing expert testimony, since any excess could be construed as payment for fact testimony. The Commission noted the opinion is consistent with its prior opinions RO-81-549, RO-82-699, and RO-88-42.

Currency note

This opinion was issued in 1997, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. Subsequent rule amendments or 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 Treat this page as historical context, not current guidance.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 an expert witness?

A: Yes. The opinion concluded an attorney may pay an expert witness a reasonable and customary fee for preparing and providing expert testimony.

Q: Can the expert's fee be tied to winning the case?

A: No. The opinion concluded the expert's fee may not be contingent on the outcome of the proceeding.

Q: Can a lawyer pay a fact witness?

A: Not for the testimony itself. The opinion concluded a lawyer may not pay a fact witness anything of value in exchange for testimony, but may reimburse the witness for actual expenses, including lost time or income, so long as the payment is not an inducement to testify in a certain way.

Q: What if an expert also has firsthand factual knowledge?

A: The opinion concluded the lawyer may still pay the witness the usual expert fee, but should not pay more than the customary fee or for more time than was actually spent on the expert testimony, to avoid the payment being construed as compensation for fact testimony.

Background and rules framework

The opinion interprets Rule 3.4(b) (fairness to opposing party and counsel; Model Rule 3.4), which bars offering a witness an inducement prohibited by law, and reads its Comment to permit reimbursement of a fact witness's legitimate expenses. It applies Rule 1.8(e) (Model Rule 1.8) to classify such reimbursements as advanced litigation expenses. The opinion also references DR 7-109 of the former Model Code of Professional Responsibility as consistent authority.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.4 / Ala. R. Prof. C. 3.4(b) (no inducement to a witness prohibited by law)
• Model Rule 1.8 / Ala. R. Prof. C. 1.8(e) (advancing court costs and expenses of litigation)
• DR 7-109, former Model Code of Professional Responsibility (payment of witness expenses and lost time)

Other opinions cited:

• Alabama RO-81-549, RO-82-699, RO-88-42 (paying witnesses; consistent prior opinions)

See also

• ABA Ethics Op. 96-402: Payments to Occurrence Witnesses
• ABA Ethics Op. 508: Ethics of Witness Preparation
• AL Ethics Op. 1983-77: Payment to an Investigator for Locating Witnesses
• RI EAP Op. 2012-08: Rule 1.8(e) Permits a Lawyer to Pay an Indigent Out-of-State Client's Transportation Costs to Attend Court Hearings, Regardless of Repayment

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1997-02/
• Original PDF: https://www.alabar.org/assets/2019/02/1997-02-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ETHICS OPINION

RO-97-02

OFFICE OF GENERAL COUNSEL

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