Can a lawyer pay a non-expert witness for time spent preparing for trial, not just for attending or testifying?

Plain-English summary

The committee was asked whether an attorney may compensate a non-expert witness for the reasonable value of time spent preparing for trial, in addition to time attending or testifying. It started from DR 7-109(C)(2), which permits a lawyer to pay reasonable compensation to a non-expert witness for loss of time in attending or testifying, while the rule expressly forbids payment contingent on the content of the testimony or the outcome of the case.

The committee acknowledged that many lawyers treat payments to lay witnesses beyond nominal statutory fees with caution, noting disciplinary cases such as Matter of Robinson and Matter of Shapiro and the commentary of Corbin and Wigmore on the danger that such bargains can color testimony. It declined to decide the separate question of law whether a contract for compensation above statutory witness fees is enforceable in New York, observing that the ethical standard under the Code turns on the contingency prohibition, not on contract enforceability.

Reading the rule's reference to "testifying," the committee found an ambiguity and construed the permitted payment as covering "loss of time in testifying or in otherwise attending court proceedings and preparing therefor." It is the witness's attendance and lost time, not the testimony itself, that is the consideration for payment. The committee said lost time must be translated into dollars: a salaried witness may be paid an amount equivalent to lost wages, and closer attention is needed where the witness is self-employed, paid on commission, or gives up weekend or evening hours, but even recreation time can be valued. The one thing a lawyer may not pay for is particular testimony. The question was answered in the affirmative.

Currency note

This opinion was issued in 1982, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (limits on paying witnesses now appear at Rule 3.4(b)). 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 Treat this page as historical context, not current guidance.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 a fact witness for time spent preparing for trial?

A: Yes. The committee read DR 7-109(C)(2) to permit reasonable payment for lost time in attending, testifying, or preparing, not just for time in the courtroom.

Q: What kind of witness payment is prohibited?

A: Payment contingent on the content of the witness's testimony or on the outcome of the case; the lawyer may pay for lost time but never for particular testimony.

Q: How should the lawyer set the amount?

A: The opinion said lost time should be translated into dollars, equivalent to lost wages for a salaried witness, with closer attention where the witness is self-employed, paid on commission, or sacrifices evenings or weekends.

Background and rules framework

The opinion applied DR 7-109(C)(2), which permits reasonable compensation to a non-expert witness for loss of time in attending or testifying while barring compensation contingent on the content of the testimony or the outcome of the case. The closest current Model Rule analogue is Rule 3.4(b) (fairness to opposing party and counsel; the prohibition on offering an inducement to a witness prohibited by law).

Citations and references

Rules of Professional Conduct:

• MR 3.4(b) (fairness to opposing party and counsel; witness inducements)
• NY DR 7-109(C)(2)

Cases:

• Matter of Robinson, 151 App. Div. 589 (1912), aff'd, 209 N.Y. 354 (1913), disbarment for inducing favorable testimony
• Matter of Shapiro, 144 App. Div. 1 (1911), payment for particular testimony improper
• Clifford v. Hughes, 139 App. Div. 730 (1910), compensation for attending and conferring with counsel

See also

• No sibling opinions yet indexed.

Source

• Landing page: https://nysba.org/opinion-547/