Can a lawyer subpoenaed by one former joint client to testify against the other accept witness payments for his time and trial preparation?
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This page answers the general question as of 2000. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer had represented two partners (Former Client One and Former Client Two) jointly in matters against a third party and represented their partnership in other matters. The two former clients later sued each other, and Former Client One subpoenaed the lawyer to testify at a deposition and trial about the work he had done for the partnership. He expected to spend several hours reviewing files, traveling, and consulting with Former Client One's attorney, and asked whether he could charge Former Client One for his expenses, lost time, and preparation. The committee noted there was no attorney-client privilege among a lawyer and joint clients as to the joint matters (Rule 1.7, Comment 12B), and assumed the lawyer would appear as a fact witness, not provide chargeable legal services.
The committee examined Rule 3.4(g), which bars paying a witness compensation contingent on testimony but allows advancing reasonable expenses, reasonable compensation for loss of time, and an expert's fee. It acknowledged its Opinion 91-3 had read the predecessor rule to allow compensating a former employee for time spent preparing as well as attending, but stressed that opinion was confined to its facts. Here the committee concluded the permission in Rule 3.4(g) does not extend to payments that threaten other principles in the rules.
The controlling principle, the committee explained, was the equal loyalty a lawyer owes joint clients (citing Rules 1.7 and 1.9 and their comments). Accepting payment from Former Client One to prepare and testify about matters arising in the joint representation threatened that obligation: even though the lawyer must testify truthfully, Former Client Two could reasonably fear the preparation process might be affected, even subconsciously, by the payment, and would feel pressure to contribute. The committee therefore advised that the loyalty principle forbade accepting the proposed payment, though the lawyer remained obligated to obey the subpoena and could receive the standard witness fee any lay witness would. It expressly declined to address whether the lawyer had to notify Former Client Two of the subpoena or make himself equally available to Former Client Two's attorney.
Currency note
This opinion was issued in 2000, before Massachusetts's adoption of the 2015 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 the lawyer-witness be paid for his trial preparation time by the client who subpoenaed him?
A: No. The committee concluded that although Rule 3.4(g) generally permits paying a witness for expenses and lost time, the lawyer's duty of equal loyalty to his two former joint clients forbade accepting such payment from one against the other.
Q: Could the lawyer receive anything for appearing?
A: Yes. The committee concluded the lawyer still had to obey the subpoena and could receive the standard witness fee and costs that any lay witness would receive.
Q: Was the lawyer's testimony privileged because it concerned former clients?
A: No. The committee noted that there is no attorney-client privilege among a lawyer and joint clients as to the matters in which they were jointly represented.
Background and rules framework
The opinion interpreted Mass. R. Prof. C. 3.4(g) (payments to witnesses) in light of the loyalty principles in Rules 1.7 (concurrent conflicts) and 1.9 (former clients) and their comments, and treated the witness as a fact witness rather than one rendering legal services chargeable under Rule 1.5. The rules corresponded to the Model Rules of the same numbers as they stood at the time.
Citations and references
Rules of Professional Conduct:
- Model Rule 3.4 / Mass. R. Prof. C. 3.4(g) (payments to a witness)
- Model Rule 1.7 / Mass. R. Prof. C. 1.7, Comments 1, 4, 6, 12B (loyalty; no privilege among joint clients)
- Model Rule 1.9 / Mass. R. Prof. C. 1.9(a), 1.9(c)(1) (duties to former clients)
Other opinions cited:
- MBA Opinion 91-3 (compensation of a fact witness for preparation time under the predecessor rule)
See also
- MA Bar Ethics Op. 03-1: City lawyer opposing a former official
- MA Bar Ethics Op. 03-4: Taking a Case Against a Former Client
Source
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