Can a lawyer reimburse a witness for expenses, and pay a fact witness for time spent being interviewed?

Plain-English summary

A witness subpoenaed to trial canceled a planned vacation and forfeited a $75 nonrefundable deposit, while other witnesses an attorney wanted to interview demanded payment for their time. The inquiry asked whether the subpoenaed witness could be reimbursed for the forfeited deposit and whether witnesses could be paid a reasonable sum for time spent being interviewed.

The committee applied former Rule 7-109(c), which lets a lawyer advance, guarantee, or acquiesce in paying a witness's reasonably incurred expenses in attending or testifying, and reasonable compensation for loss of time in attending or testifying. It read those provisions to permit reimbursing the subpoenaed witness for sums lost by being required to appear. The committee further concluded the rule is not limited on its face to trial or deposition attendance, or to time lost from a job, and is broad enough to permit (though not require) reasonable compensation for time spent being interviewed.

The committee cautioned that to the extent any payment is actually for influencing testimony, making a prospective witness sympathetic to one's cause, or suborning perjury, it is indefensible (citing In re Howard and out-of-state discipline cases), and an attorney must be wary where the true purpose of a payment may be questioned.

Currency note

This opinion was issued in January 1988, 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 Rule (Rule 3.4(b) with its Comment [3], and Opinions 88-9 and 91-1), 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 Treat this page as historical context, not current guidance.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 reimburse a witness for expenses caused by appearing?

A: The opinion concluded yes; former Rule 7-109(c) lets a lawyer pay a witness's reasonably incurred expenses in attending or testifying, such as a forfeited nonrefundable deposit.

Q: Can a lawyer pay a fact witness for time spent being interviewed?

A: Per the opinion, the rule is broad enough to permit, though not require, reasonable compensation for a witness's lost time, including time spent in an interview, not only trial or deposition time.

Q: Where is the line?

A: The opinion concluded that any payment actually aimed at influencing testimony, making the witness sympathetic, or suborning perjury is indefensible, and the lawyer must be cautious where the true purpose may be questioned.

Background and rules framework

The opinion applied former Illinois Code Rule 7-109(c), governing permissible payments to witnesses for expenses and lost time. The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 3.4(b), corresponding to ABA Model Rule 3.4 on fairness to the opposing party and counsel.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 7-109(c) (former Code, applied in the opinion)
• Illinois RPC 3.4(b) (2010 equivalent per the Board's affirmation)
• MR 3.4 (fairness to opposing party and counsel)

Cases:

• In re Howard, 69 Ill. 2d 343, 372 N.E.2d 371 (Ill. 1977), discipline involving improper witness payment
• In re Rosen, 438 A.2d 316 (N.J. 1981); In re Robinson, 136 N.Y.S. 548 (1912)

See also

• ISBA Ethics Op. 87-10: Charging a Client Interest on Past-Due Bills and Advanced Expenses
• ISBA Ethics Op. 89-04: A Prosecutor's Direct Talks With a Represented Defendant

Source

• Landing page: https://www.isba.org/ethics/opinions/8705