Can a New York lawyer buy physical evidence, such as surveillance video, for use in litigation, and can the payment be contingent on the case outcome?

Plain-English summary

A lawyer represented a plaintiff in a personal-injury action arising from an auto accident. A store's surveillance camera had recorded the events, apparently showing the defendant caused the accident, and the storeowner offered to sell the lawyer the surveillance tape. The lawyer asked whether buying the evidence was proper and whether the payment could be contingent on the outcome of the matter.

The opinion concludes that nothing in the Rules prohibits paying for physical evidence, and that such payment can be an appropriate means of advancing a client's interests (citing Rule 1.1(c)(1) and Rule 1.8(e), which allows advancing litigation expenses including the costs of obtaining and presenting evidence). It then identifies three limits. First, a lawyer may not knowingly offer or use false evidence, and may not evade that bar by remaining willfully blind to falsity (Rule 3.3(a)(3)). Second, when it is foreseeable that the seller will be called as a witness, for instance to authenticate the tape, the witness-payment limits of Rule 3.4(b) apply: a lawyer may pay reasonable compensation for a witness's time and related expenses, but not compensation contingent on the content of testimony or the outcome of the matter. A lawyer cannot circumvent that rule by disguising witness payments as payments for physical evidence. Third, the circumstances of payment can raise reliability concerns (for example, evidence easily altered, a disproportionately large payment, or suspicious conduct), and on sufficiently extreme facts the purchase could be conduct prejudicial to the administration of justice under Rule 8.4(d).

When none of those limits is triggered, the opinion holds that a lawyer may purchase surveillance video from a third party for use as evidence, there is no per se rule against the payment being contingent on case outcome, and the cost need not be charged to the client immediately or even ultimately (Rule 1.8(e)(1)-(3)).

In practice

Under this opinion, buying physical evidence such as surveillance video for litigation is permitted, and the payment for purely physical (as opposed to testimonial) evidence may be contingent on the case outcome. The opinion makes clear two lines that change the analysis: if the seller becomes a witness, Rule 3.4(b)'s prohibition on outcome-contingent or testimony-contingent witness compensation governs that compensation; and if the lawyer knows the evidence is false, Rule 3.3 bars offering it. The committee also flagged that extreme facts suggesting unreliable or manufactured evidence could amount to a Rule 8.4(d) violation, with a trial court positioned to assess the facts and fashion remedies.

Common questions

Q: Can a lawyer pay a third party for physical evidence like a surveillance tape?

A: Yes. The opinion finds no rule prohibiting payment for physical evidence and treats it as a permissible way to obtain evidence for litigation under Rules 1.1(c) and 1.8(e).

Q: Can the payment for the evidence be contingent on the outcome of the case?

A: For purely physical evidence, yes; the opinion finds no per se rule against an outcome-contingent payment. But if the payment is actually compensation to a witness, Rule 3.4(b) bars making it contingent on the testimony's content or the matter's outcome.

Q: What if the person selling the evidence will testify to authenticate it?

A: Then Rule 3.4(b) applies to that person. The lawyer may pay reasonable compensation for the witness's time and related expenses, but not contingent compensation, and may not disguise a witness payment as a payment for physical evidence.

Q: What if the lawyer suspects the evidence has been altered?

A: A lawyer who knows the evidence is false may not offer or use it (Rule 3.3(a)(3)) and may not stay willfully blind to its falsity. The opinion adds that suspicious payment circumstances can, in extreme cases, raise a Rule 8.4(d) problem.

Background and rules framework

The opinion applies New York Rule 1.1(c)(1) (pursuing client objectives by lawful means; cf. Model Rule 1.1), Rule 1.8(e) (advancing litigation expenses, including the costs of obtaining and presenting evidence; cf. Model Rule 1.8(e)), Rule 3.3(a)(3) (no offering false evidence; cf. Model Rule 3.3), Rule 3.4(b) (no compensating a witness contingent on testimony or outcome; reasonable compensation for time and related expenses permitted; cf. Model Rule 3.4(b)), and Rule 8.4(d) (no conduct prejudicial to the administration of justice; cf. Model Rule 8.4(d)). It cites Caldwell v. Cablevision Systems Corp., 20 N.Y.3d 365 (2013), on disproportionate payments to a fact witness.

Citations and references

Rules of Professional Conduct:

• New York RPC 1.1(c)(1) (lawful pursuit of client objectives)
• New York RPC 1.8(e)(1)-(3) (advancing litigation expenses, including evidence costs; cf. Model Rule 1.8(e))
• New York RPC 3.3(a)(3) (no offering evidence the lawyer knows is false; cf. Model Rule 3.3)
• New York RPC 3.4(b) (witness compensation limits; cf. Model Rule 3.4(b))
• New York RPC 8.4(d) (conduct prejudicial to the administration of justice; cf. Model Rule 8.4(d))

Cases:

• Caldwell v. Cablevision Systems Corp., 20 N.Y.3d 365 (N.Y. 2013), substantial payment to a fact witness and potential bias

Other opinions cited:

• N.Y. State 962 (2013): "reasonable related expenses" permitted by Rule 3.4(b)(1)
• N.Y. State 668 (1994): "reasonable compensation" of a witness
• N.Y. State 993 (2013): conscious-avoidance doctrine in the ethics context

See also

• NY State Bar Op. 1140: Representing a Testifying Expert Witness
• NY State Bar Op. 1011: Duty to Remedy Fraudulent Visa Submissions
• NY State Bar Op. 1123: False Statement of Net Worth and Remedial Measures

Source

• Landing page: https://nysba.org/ethics-opinion-997/