May a Connecticut lawyer offer debt forgiveness or forbearance on a client's behalf in exchange for a fact witness's testimony?
Apply this to your situation
This page answers the general question as of 2019. Ask about yours and see what the current Connecticut Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A loan guarantor had relevant evidence in the lender's case against an appraiser but demanded forgiveness, reduction, or forbearance of remaining payments before voluntarily testifying. Rule 3.4(2) prohibits a witness inducement prohibited by law, and Conn. Gen. Stat. § 53a-149 prohibits conferring any benefit to influence testimony or witness conduct.
The Committee concluded that debt relief would be a benefit and could not be recast as settlement of resistance to a subpoena. Rule 8.4(1) also prevented the lawyer from routing the benefit through the client, and the conduct could prejudice the administration of justice under Rule 8.4(4).
The opinion distinguishes the proposed benefit from reasonable compensation for a fact witness's actual time and expenses when payment is not intended to affect the content of testimony.
In practice
Under this opinion, the prohibition covers noncash benefits and applies even when the witness demands the benefit first. It also reaches conduct such as appearing as a witness, not only the substance of testimony.
Common questions
Q: May the client forgive debt in exchange for an affidavit?
A: No. The benefit would influence the witness's conduct and violate the cited statute and Rules.
Q: Does it matter that the client, not the lawyer, would provide the benefit?
A: No. Rule 8.4(1) prohibits violating the Rules through another person's acts.
Q: May a fact witness receive reasonable time and expense compensation?
A: The opinion recognizes such payments when they are reasonably related to actual time and expenses and do not influence testimony.
Background and rules framework
The Committee applies Rule 3.4(2) through Connecticut's witness-bribery statutes, then applies Rules 8.4(1) and 8.4(4) to conduct through the client and prejudice to the administration of justice.
Citations and references
Connecticut Rules of Professional Conduct:
- Rules 1.1, 3.4(2), 8.4(1), and 8.4(4)
Statutes:
- Conn. Gen. Stat. §§ 53a-149 and 53a-150
Cases:
- State v. Davis, 160 Conn. App. 251, 258-59, cert. denied, 320 Conn. 901 (2015), scope of witness-bribery and tampering statutes
- In re Robinson, 136 N.Y.S. 548, 556 (1912), payments for testimony
Other opinions cited:
- ABA Formal Opinion 96-403, payments to occurrence witnesses
- Connecticut Informal Opinion 92-30, payment to an attorney as a fact witness
See also
- Maine Ethics Op. 224: Paying a non-expert witness
- Colorado Formal Op. 103: Compensating a non-expert witness
Source
- Landing page: Connecticut Bar Association Informal Ethics Opinions
- Original PDF: Informal Opinion 19-01
What do the rules say today, for your facts?
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