COBAR December 19, 1998

Can a Colorado lawyer pay a fact (non-expert) witness in a civil case for the time spent testifying and preparing to testify?

Short answer: The opinion concluded that a lawyer may reimburse a non-expert witness in a civil action both for expenses and for the reasonable value of time spent testifying and preparing to testify, as long as the payment is not contingent on the content of the testimony or the outcome of the case and is not prohibited by law, with reasonableness judged case by case.

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This page answers the general question as of 1998. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

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Plain-English summary

Opinion 103 (adopted December 19, 1998, replacing Formal Opinion 44) addressed whether a lawyer could ethically compensate a non-expert (occurrence or fact) witness in a civil action. The Committee's syllabus concluded a lawyer could reimburse such a witness not only for expenses incurred in testifying but also for the reasonable value of the witness's time expended in testifying and in preparing to testify, provided the payment was not contingent on the content of the testimony or the outcome of the case and was not prohibited by law. The opinion did not address witness compensation in criminal cases.

The analysis turned on Colo. RPC 3.4(b), which barred a lawyer from offering "an inducement to a witness that is prohibited by law," and its Comment [3], which stated it is not improper to pay a witness's expenses. Adopting the reasoning of ABA Formal Opinion 96-402, the Committee concluded that paying a fact witness for lost time was neither a prohibited "fee for testifying" nor merely an "expense," and that paying for a reasonable amount of preparation time (such as reviewing germane records or attending pretrial interviews) was permitted, so long as it was made clear the payment was for the witness's time and not for the substance or efficacy of the testimony.

The Committee stressed limits. Compensation had to be reasonable so as not to affect, even unintentionally, the content of the testimony, and could never be contingent on the testimony's content or the case's outcome. It surveyed authorities disciplining lawyers for improper witness payments, including People v. Belfor, Golden Door Jewelry Creations v. Lloyds Underwriters, and Wagner v. Lehman Brothers, and treated reasonableness as a case-by-case determination, pointing to benchmarks such as the witness's current rate of pay, last earnings if unemployed, or what others earn for comparable activity. It also observed that such compensation could be discoverable and admissible at trial, and expressed no opinion on whether it was recoverable as costs.

Currency note

This opinion was issued in 1998, before Colorado's 2008 revisions to the 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 Colorado lawyer pay a fact witness for time, not just expenses?

A: Yes. The opinion concluded a lawyer could reimburse a non-expert witness in a civil action for the reasonable value of time spent testifying and preparing to testify, in addition to expenses, so long as the payment was not contingent on the content of the testimony or the outcome of the case.

Q: Could the lawyer pay the witness for preparation time?

A: Yes, within reason. The opinion concluded that compensating a witness for a reasonable amount of time spent preparing (such as reviewing records germane to the testimony or attending pretrial interviews) was permitted under Rule 3.4, provided it was made clear the payment was for time and not for the substance or efficacy of the testimony.

Q: What made a witness payment improper?

A: Contingency and unreasonableness. The opinion concluded payment could not be contingent on the content of the testimony or the outcome of the case, and that the amount had to be reasonable so it would not, even unintentionally, affect the content of the testimony.

Q: How was a "reasonable" amount determined?

A: Case by case. The opinion declined to fix a universal figure, pointing to benchmarks drawn from other jurisdictions such as the witness's current rate of pay, what the witness last earned if unemployed, or what others earn for comparable activity.

Background and rules framework

The opinion interpreted Colo. RPC 3.4(b) (a lawyer shall not offer a witness an inducement prohibited by law) and its Comment [3], which the Committee noted tracked Model Rule 3.4(b) and its Comment [3] identically on this issue. It traced the rule to the predecessor Colorado Code of Professional Responsibility, DR 7-109(C), which had expressly allowed "reasonable compensation to a witness for his loss of time in attending or testifying," and relied on ABA Formal Opinion 96-402's reading of the identical Model Rule. It also cited Colorado witness-fee statutes and the state's witness-tampering statutes as legal limits.

Citations and references

Rules of Professional Conduct:

Colo. RPC 3.4(b) / Model Rule 3.4(b) (fairness to opposing party; inducements to witnesses)
Colo. Code of Professional Responsibility DR 7-109(C) (predecessor rule)

Statutes:

C.R.S. §§ 13-33-102(1)-(3) (witness attendance fees)
C.R.S. § 13-33-103 (witness mileage fees)
C.R.S. §§ 18-8-701 et seq. (bribing, intimidating, or tampering with a witness)

Cases:

People v. Attorney A, 861 P.2d 705 (Colo. 1993), discipline for conduct prejudicial to the administration of justice
People v. Belfor, 591 P.2d 585 (Colo. 1979), suspension for paying a witness to induce favorable testimony
Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Ass'n, 865 F. Supp. 1516 (S.D. Fla. 1994), substantial payments to fact witnesses violated Rule 3.4(b)
Wagner v. Lehman Brothers Kuhn Loeb Inc., 646 F. Supp. 643 (N.D. Ill. 1986), contingent payment to a witness violated DR 7-109(C)
Comm. on Legal Ethics of the W. Va. State Bar v. Sheatsley, 452 S.E.2d 75 (W. Va. 1994), reprimand for acquiescing in a contingent witness payment

Other opinions cited:

ABA Formal Op. 96-402 (1996): payment for a witness's loss of time
CBA Formal Op. 44: replaced by this opinion
State Bar of Cal. Formal Op. 1997-149: paying non-expert witnesses
State Bar of Arizona Formal Op. 97-07; New York State Bar Op. 668

Source

Landing page: https://www.cobar.org/ethicsopinions
Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_103_2011.pdf

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