Can a lawyer pay a fact witness, here a former employee of the client, for time spent preparing for and attending a deposition or trial?
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This page answers the general question as of 1991. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A corporation designated a former managerial employee under Mass. R. Civ. P. 30(b)(6) to testify because no current employee had firsthand knowledge. The witness, then between jobs and doing some consulting work, had to spend substantial time reviewing documents and refreshing his recollection. After his deposition he billed the firm by the hour for preparation and testimony, though only expenses had been agreed to. Now employed and outside the court's subpoena power, he said he would not appear for trial unless paid. The firm asked whether it could pay him for the deposition time, for trial preparation and attendance, and on what basis to set reasonable compensation.
The committee worked through DR 7-109(C), which forbids compensation contingent on the content of testimony or the outcome but permits paying a witness's expenses, "reasonable compensation to a witness for his loss of time in attending or testifying," and a reasonable fee for an expert. It described the rule as badly drafted and noted that ethics committees elsewhere had split: New York, Illinois, Virginia, and Wisconsin allowed payment for the reasonable value of time spent preparing and testifying, while Maryland and Alabama, following EC 7-28, limited non-expert witnesses to reimbursement for lost wages and monetary loss. The committee found substantial merit in EC 7-28's concern that paying ordinary fact witnesses for their time could be a financial inducement, and it concluded that permitting time-based payment to stranger fact witnesses would open the door to paying all witnesses in all cases, contrary to the rule's purpose.
The committee treated the inquiry's former employee as a different kind of witness. Because his knowledge was critical, no current employee had it, and he had close pre-existing ties to the party, paying him for his time (and only his time) did not present a substantial added threat to the integrity of his testimony. Given the rule's ambiguity, the committee concluded the Supreme Judicial Court would not find a DR 7-109(C) violation in paying an employee or former employee for time spent testifying and preparing about a matter from his employment, at least on these facts. It limited the opinion to that fact pattern. On the basis for reasonable compensation, the committee said that question was beyond its capacity to decide, warning only that payment exceeding what the witness had ordinarily charged and received for his time might evidence an impermissible inducement.
Currency note
This opinion was issued in 1991, 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: Can a lawyer pay an ordinary fact witness for the time spent preparing and testifying?
A: The committee concluded DR 7-109(C) does not allow paying an ordinary, stranger fact witness beyond expenses and financial loss, because doing so could be a financial inducement and would effectively permit paying all witnesses in all cases.
Q: Why could the client's former employee be paid for his time?
A: The committee read DR 7-109(C) not to reach a former employee whose knowledge was critical, who had to spend substantial time preparing, and who had close pre-existing ties to the party, so paying him for his time (only his time) did not present a substantial added threat to his testimony's integrity.
Q: How should reasonable compensation be set?
A: The committee said that question was beyond its capacity to decide, cautioning only that paying more than the witness had ordinarily charged and received for his time might evidence an impermissible payment to induce testimony.
Background and rules framework
The opinion interpreted DR 7-109(C), the Massachusetts disciplinary rule on payments to witnesses, against EC 7-28 of the Model Code (adopted in Massachusetts as interpretive but not binding). The subject matter corresponds today to Model Rule 3.4(b) (fairness to opposing party and counsel; offering an inducement to a witness prohibited by law). The committee did not analyze Mass. R. Civ. P. 30(b)(6) beyond noting the witness's designation.
Citations and references
Rules of Professional Conduct:
- DR 7-109(C) / Model Rule 3.4(b) (compensation of witnesses; prohibited inducements)
- EC 7-28 (Model Code ethical consideration limiting non-expert witness payments to financial loss)
Other opinions cited:
- NY State Bar Op. 547 (1982); Illinois State Bar Op. 87-5; Virginia State Bar Op. 587 (1984); Wisconsin Op. E-89-17 (allowing time-based payment)
- Maryland State Bar Op. 83-38; Alabama Op. 81-549 (limiting payment to financial loss)
See also
- RI EAP Op. 2011-1: Compensating a Treating Physician for Expert Testimony Is Not a Prohibited Inducement Under Rule 3.4(b) Even Where the Physician Also Testifies as a Fact Witness
- Alaska Ethics Op. 93-2: Paying Witnesses for Testimony
Source
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