Can a lawyer hire, or have a client hire, a witness-finder agency whose fee is contingent on the case outcome, even though the expert's own fee is fixed?

Plain-English summary

A lawyer representing an injured client needed an expert medical witness and contacted a witness-service organization, a finder. The finder presented the client a contract under which its finder's fee was contingent on the case outcome (a percentage of gross recovery) and the client was also obligated for the expert's separate, fixed fee, prepaid before testimony. The expert was not a party to the finder's contract and allegedly did not know of it. The committee was asked whether it was proper for the lawyer to recommend that the client contract with the finder on those terms.

The committee first addressed the expert's own pay. Under former Rule 7-109(c)(1) through (3), an expert witness's compensation may comprise attendance expenses, reimbursement for lost time, or a reasonable professional fee; because the expert's fee here was a fixed, prepaid amount, the committee found that aspect posed no ethical problem. The difficulty was the finder's contingent fee. Former Rule 7-109(c) barred a lawyer from paying, offering to pay, or acquiescing in compensation to a witness contingent on the content of testimony or the outcome of the case, and Rule 1-102(a)(2) barred circumventing a disciplinary rule through the actions of another.

The committee concluded that whether the lawyer contracted directly or acquiesced in the client doing so made no difference, and that the "insulation" of routing the contingency through the finder rather than the expert did not save it. The substance of the arrangement turned on the outcome, which depends to some degree, and sometimes wholly, on the expert's testimony. Hiring an expert through a third-party agency whose fee depends on the outcome was therefore an improper circumvention of the meaning and intent of Rule 7-109(c).

Currency note

This opinion was issued in July 1986, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rules (Rule 3.4(b), with Comment [3], and Rule 8.4(a)), while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 or requirement mentioned here.

Common questions

Q: Can a lawyer use a witness-finder agency paid a percentage of the recovery?

A: The opinion concluded no; a finder's fee contingent on the case outcome is an improper circumvention of the bar on outcome-contingent witness compensation.

Q: Does it matter that the expert's own fee is fixed and prepaid?

A: No. The committee found the expert's fixed fee unobjectionable, but held that routing the contingency through the finder did not cure the problem, because the arrangement still turned on the outcome.

Q: Does it help that the client, rather than the lawyer, signs the finder's contract?

A: No. The committee said acquiescing in the client's signing was treated the same as the lawyer contracting directly, under the rule against circumventing a disciplinary rule through another's actions.

Background and rules framework

The opinion applied former Illinois Code Rule 7-109(c) (compensation of witnesses, barring outcome- or content-contingent pay) and Rule 1-102(a)(2) (circumventing a rule through another). The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 3.4(b), with Comment [3] (fairness to opposing party, witness payment), and 8.4(a) (violating the rules through the acts of another), corresponding to ABA Model Rules 3.4(b) and 8.4(a).

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 7-109(c) (witness compensation, applied in the opinion)
• Illinois Code Rule 1-102(a)(2) (circumventing a rule through another)
• Illinois RPC 3.4(b) with Comment [3], and 8.4(a) (2010 equivalents per the Board's affirmation)
• MR 3.4(b) (fairness to opposing party); MR 8.4(a) (violating rules through another)

See also

• ISBA Ethics Op. 87-05: Paying and Reimbursing Witnesses
• FL Bar Ethics Op. 98-1: Contingency-Fee Medical Consultant
• MA Bar Ethics Op. 91-3: Paying a Fact Witness for Their Time

Source

• Landing page: https://www.isba.org/ethics/opinions/8603