When does paying a witness for testimony cross the ethical line, and how is a paid fact witness different from a paid expert?

Plain-English summary

The Committee was asked when it would be unethical to compensate a witness for testimony. Rule 3.4(b) bars offering a witness an inducement that is prohibited by law, and its Comment states that paying a witness's expenses or compensating an expert on terms permitted by law is proper, while the common-law rule in most jurisdictions makes it improper to pay an occurrence witness any fee for testifying and improper to pay an expert a contingent fee.

The opinion explained why applying that line is difficult: the distinction between a lay witness and an expert is not always clear (lay witnesses may give opinions rationally based on their perception), Alaska is liberal on the admissibility of expert testimony, and compensation does not turn solely on whether a witness is labeled an expert, because a fee for limited "professional services" could become so excessive as to be unreasonable. The opinion set out factors to evaluate a witness fee: how it compares to the witness's normal wage or salary, whether the witness has a genuine consulting business, whether the testimony rests on firsthand observation rather than after-the-fact analysis, and what services the witness actually provides in return.

The opinion emphasized that a witness who is paid primarily to provide firsthand observations and recollections is properly treated as a lay witness, and that paying such a witness should be done with caution. It stressed that paying a witness "to tell the truth" is as subversive of the administration of justice as paying for false testimony, while reaffirming (from former EC 7-28) that a lawyer may reimburse a non-expert witness for expenses and financial loss incident to being a witness, so long as the compensation meets an objective standard of reasonableness.

Currency note

This opinion was issued in 1993, before Alaska's adoption of the 2009 revisions to the Alaska 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 Treat this page as historical context, not current guidance.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: Could a lawyer pay a fact witness a fee to testify?

A: No. The opinion stated the common-law rule that it is improper to pay an occurrence witness any fee for testifying, and that such a witness may be reimbursed only for expenses and financial loss incident to being a witness.

Q: Could an expert witness be paid a contingent fee tied to the outcome?

A: No. The opinion stated it is improper to pay an expert witness a contingent fee.

Q: How did the opinion tell an expert apart from a paid lay witness?

A: The opinion offered factors: how the fee compares to the witness's normal wage, whether the witness has a real consulting business, whether the testimony is based on firsthand observation or later analysis, and what the witness does in return for the payment.

Background and rules framework

The opinion interpreted Alaska Rule of Professional Conduct 3.4(b) (Model Rule 3.4, fairness to opposing party and counsel), which bars offering a witness an inducement prohibited by law, reading it together with its Comment and the common-law rules on witness payment. It drew on the Alaska Rules of Evidence (701, 702) on lay and expert opinion and on former Ethical Consideration 7-28 regarding reimbursement of non-expert witnesses.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.4 / Alaska RPC 3.4(b) (fairness to opposing party; inducements to witnesses)

Cases:

• In re Porcelli, 397 N.E.2d 830 (Ill. App. 1979)
• People v. Belfor, 591 P.2d 585 (Colo. App. 1979)

See also

• ABA Formal Op. 96-402: Payments to Occurrence Witnesses
• ISBA Ethics Op. 86-03: Expert Witness Fee Contingent on Outcome
• Alabar Ethics Op. 1983-77: Payment to an Investigator for Locating Witnesses

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/93-2.pdf

Original opinion text

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

ALASKA BAR ASSOCIATION
ETHICS OPINION 93-2
Ethical Restraints on the Compensation of Witnesses
The Committee has been asked to consider the circumstances under
which it would be unethical to compensate a witness for his or her testimony.
Rule 3.4(b) of the Alaska Rules of Professional Conduct ("ARPC") prohibits
a lawyer from "offer[ing] an inducement to a witness that is prohibited by law."
The Comment to this rule observes that "it is not improper to pay a witness's
expenses or to compensate an expert witness on terms permitted by law. The
common law rule in most jurisdictions is that it is improper to pay an
occurrence witness any fee for testifying and that it is improper to pay an
expert witness a contingent fee."1
The Committee's task is complicated by several factors. First, the
distinction between a lay witness and an expert is not always clear. Lay
witnesses may be permitted to offer opinions if "rationally based on the
perception of the witness" and if it would assist in the "determination of a fact
in issue." See Alaska Evidence Rule 701. Depending on the size of the case
and the demands on the witness's time, it may be appropriate for the witness
to receive a reasonable fee in addition to reimbursement of his or her expenses.
See n.2 infra.
Secondly, Alaska is generally a liberal jurisdiction with respect to the
admissibility of expert testimony. Norris v. Gatts, 738 P.2d 344 (Alaska 1987);
Hilburn v. State, 756 P.2d 1382 (Alaska App. 1988). There is no requirement
that a witness possess a particular license or academic degree in order to
qualify as an expert; the criterion in determining whether a person qualifies as
an expert is whether the fact finder can receive appreciable help from that
person. Leavitt v. Gillaspie, 443 P.2d 61 (Alaska 1968). The issue of
admissibility is committed to the broad discretion of the trial judge.
New v. State, 714 P.2d 378 (Alaska App. 1986).

1
This is generally consistent with the former Disciplinary Rule 7109(C). See also former Ethical Consideration 7-28.
1

Finally, the issue of compensation does not necessarily hinge on whether
the witness is properly characterized as an expert. Most experts command
high fees because of their professional training, education, skill or experience.
However, a witness may be qualified as an expert on a relatively discrete issue,
or for a limited purpose, but the fee for his or her "professional services" could
be grossly disproportionate to what the witness would make in his or her
normal trade or endeavor. Under those circumstances, a fee for an expert
could be so excessive as to no longer be "reasonable."
Notwithstanding, the Committee believes that it is appropriate to evaluate
certain factors in determining the ethical constraints on the compensation or
fees which a witness might receive.
1.
How does the fee or compensation paid to the witness compare to
the wage or salary in his or her normal trade or occupation. Again, this issue
is not clear cut. For instance, a highly skilled auto mechanic may command
$30.00 per hour in the shop. Even though he or she may qualify as an expert
mechanic, a fee of $250.00 per hour for testimony in a case may not be
"reasonable." By the same token, a highly skilled and educated engineer may
be content in his or her twilight years to earn a relatively nominal wage
working in a greenhouse. Yet, that person could probably command a fee
worth many times his or her hourly wage.
2.
Does the "expert" have other clients and/or a consulting business?
If not, and he or she is commanding a fee for services above and beyond what
would normally be the case for a person in their trade or occupation, that
arrangement might run afoul of the ethical prohibition.
3.
Is the "expert" testifying based upon firsthand observations or
experience, or based upon after-the-fact independent analysis and evaluation?
For instance, former employees of a product manufacturer could testify about
their observations during the time they were employed with the product
manufacturer, and that, in their opinion, the manufacturer falsified test
results, had a deficient quality control procedure, etc. While these may be
opinions, in the Committee's view that person does not qualify as an expert, as
defined by Alaska Evidence Rule 702. In effect, the witness is being paid for
his or her recollections and observations. It is probably true that many other
employees, both present and former, worked for the manufacturer during the
same period of time; why is this witness's observations or comments any more
insightful or probative than the other employees, former or otherwise? In fact,
the witness's opinions could be probative because of the position held with the
former employer, but that does not qualify the witness as an "expert" in the
Committee's view.
4.
Related to the above, what services does the witness provide in
return for his or her compensation? If it is analysis and evaluation followed by
testimony in deposition or in court, the witness is more fairly characterized as
an "expert." If a witness, on the other-hand, is paid primarily to provide
observations and recollections related to his or her firsthand experience or
observations, or to review documentation provided by the attorney for purposes
of refreshing their recollection of events and circumstances, the witness is more
properly characterized as a lay witness. In the Committee's view, paying a fee

2

or providing compensation to the latter category of witness should be done with
caution, and mindful of the ethical constraints.2
Given the wide variety of litigation and the complexity of issues which are
involved, categorizing a person as an expert or a lay witness defies an easy
solution. The Committee believes the above factors can assist in making that
determination. We emphasize that this issue should not be taken lightly by the
practicing bar. The payment of a sum of money to a witness "to tell the truth"
is just as subversive of the proper administration of justice as to pay the
witness to testify to what is not true. In re Porcelli, 397 N.E.2d 830 (Ill. App.
1979); People v. Belfor, 591 P.2d 585 (Colo. App. 1979). Not only is the
practice unethical but it also exposes a witness to cross-examination and
attacks on his or her integrity and character which could be very damaging to
the attorney's case and the cause of his or her client.
Approved by the Alaska Bar Association Ethics Committee on September 2,
1993.
Adopted by the Board of Governors on September 11, 1993.
205WP1MANUL

2
The Committee espouses the view set forth in former EC 7-28 to the effect
that a lawyer may, if necessary, reimburse a non- expert witness "for expenses
and financial loss incident to his being a witness." If the lay witness is an
engineer or other professional, or a treating physician who often presents a
mixed bag of both fact and opinion testimony, their "financial loss" could be
a substantial and reimbursement of that loss by the attorney would be ethical.
However, the Committee emphasizes that the compensation must always meet some
objective standard of reasonableness, which, again, depends for the most part
on the witness's occupation and/or trade.
3