Can a lawyer arrange for a client to pay a fact witness's travel expenses, and the witness's own legal fees, to secure the witness's testimony?

Plain-English summary

A lawyer represents the proponent of a will and needs the testimony of an in-state attesting witness who lives several hours from the courthouse and has asked that her own counsel be present during her testimony. The lawyer asked whether the client may pay the witness's travel costs (air fare and hotel) and the witness's legal fees.

The committee analyzes Rule 3.4(b), which bars an inducement to a witness that is "prohibited by law" and bars compensation "contingent upon the witness's testimony or the outcome of the matter," but expressly permits advancing "reasonable compensation to a witness for the loss of time" and "reasonable related expenses." Comment [3] confirms it is not improper to pay a witness's reasonable expenses. The committee frames the line, drawn from N.Y. State 668 (1994), as between compensation that eases the burden of testifying and compensation that tends to influence a witness to "remember" things favorably.

On travel expenses, the committee notes case law (including Caldwell v. Cablevision Sys. Corp.) treating CPLR 8001(a)'s statutory witness fee as a minimum, not a ceiling, and treating excess voluntary payments as permissible. It concludes that reasonable travel reimbursement is a "reasonable related expense" under Rule 3.4(b)(1), so paying it on the client's behalf is proper even above the statutory fee. The committee declines to set a bright-line figure but quotes guidance that reimbursement not exceeding actual out-of-pocket expenses of standard types (travel, lodging, meals) is generally reasonable.

On legal fees, the committee follows N.Y. County 729 (2000), which reasoned that paying a witness's counsel fees is unlikely to influence testimony because such payment "is of no use to the witness outside of the litigation." It concludes that reasonable legal fees can likewise be "reasonable related expenses" payable under Rule 3.4(b)(1). The overarching condition for both categories is that the payment not be contingent on testimony content or case outcome.

In practice

The opinion holds that, under Rule 3.4(b) as it stood in 2013, a lawyer may arrange a client's payment of a fact witness's reasonable travel expenses and reasonable legal fees so long as the payment is lawful and non-contingent. The committee identifies the controlling factor as the contingency bar and the reasonableness of the amount: payments tied to the substance of testimony or the case result are prohibited, and payments "unreasonably high or disproportionate" to the time spent can raise an inference that they are really a fee for testifying. The committee does not opine on the underlying legal question of what payment is "prohibited by law."

Common questions

Q: Can a client pay a fact witness more than the statutory CPLR witness fee?

A: Yes, within reason. Per paragraphs 9 and 12, the committee notes case law treating the CPLR 8001(a) fee as a minimum and concludes reasonable travel reimbursement above it is a permissible "reasonable related expense" under Rule 3.4(b)(1).

Q: Can a lawyer arrange to pay a fact witness's own attorney's fees?

A: Yes, if reasonable. Following N.Y. County 729 (2000), paragraphs 14 to 16 conclude that reasonable legal fees for a witness who wants counsel present are "reasonable related expenses" payable under Rule 3.4(b)(1).

Q: What makes a witness payment improper under Rule 3.4(b)?

A: A payment contingent on the content of the testimony or the outcome of the case (paragraph 10), or a payment so high or disproportionate to the time spent that it looks like a fee for testifying rather than reimbursement (paragraph 13).

Background and rules framework

The opinion interprets Rule 3.4(b) (Model Rule 3.4(b)), which governs payments and inducements to witnesses, together with its Comment [3]. The committee situates the rule against New York witness-fee statutes (SCPA 1404(5); CPLR 8001 and 2303), which it treats as the "prohibited by law" backdrop, while declining to resolve any legal question about their limits. It draws on prior New York ethics opinions and on ABA Formal Op. 96-402 interpreting Model Rule 3.4.

Citations and references

Rules of Professional Conduct:

• MR 3.4 / NY Rule 3.4(b) (fairness to opposing party; payments to witnesses), and Comment [3]

Statutes:

• SCPA 1404(5) (estate payment of attesting-witness production costs)
• CPLR 8001(a), (b), (c); CPLR 2303 (statutory witness attendance and travel fees)

Cases:

• Caldwell v. Cablevision Sys. Corp., 86 A.D.3d 46, aff'd, 20 N.Y.3d 365 (2013), on the statutory fee as a minimum and the inference from excessive payments.
• In re Feinberg, Sur. Ct. Queens Co. 2012, on voluntary payments above the statutory fee.

Other opinions cited:

• ABA Formal Op. 96-402: a lawyer may compensate a non-expert witness for time and expenses if not conditioned on testimony content and not unlawful.
• N.Y. State 668 (1994); N.Y. State 547 (1982); N.Y. State 714 (1999): rationale and limits of witness compensation.
• N.Y. County 729 (2000): advancing a witness's legal fees as a reasonable related expense.

See also

• NY State Bar Op. 1140: Representing a testifying expert witness
• NY State Bar Op. 1278: Disclosure of a prior relationship with a witness
• NY State Bar Op. 1045: In-house counsel as a witness in an agency investigation

Source

• Landing page: https://nysba.org/ethics-opinion-962/