Can a lawyer who is called to testify as a fact witness about a former representation charge the client an hourly fee for preparing and testifying?

Plain-English summary

A lawyer expected to be called by a client (or former client) to testify about the prior representation in litigation between the client and another party. The lawyer would not represent any party in the case, so the committee set aside DR 5-101(B) (the advocate-witness bar), which was inapplicable. The lawyer asked whether the client could pay the lawyer's customary hourly fee for time spent preparing to testify and testifying.

The committee treated the question as one of both law and ethics. It declined to opine on whether such payment is legal, a question beyond its jurisdiction, while noting that if the payment were illegal it would also be unethical. Assuming legality, the committee turned to the ethics. It explained that CPLR 8001 sets a statutory witness fee (then fifteen dollars per day plus mileage), but that if a client with knowledge of those statutory rights agrees to pay more, DR 7-109(C)(2) governs by allowing "reasonable compensation . . . for the loss of time in attending and testifying." Drawing on N.Y. State 547 (1982) and N.Y. State 668 (1994), the committee said reasonable compensation tracks the market value of the witness's time, not merely out-of-pocket expenses, and that what is forbidden is compensation tied to the content of the testimony or the outcome of the case.

The committee concluded that, like other witnesses, a lawyer may receive reasonable compensation for time preparing and testifying, provided the party calling the lawyer understands there is no obligation beyond the statutory fee. If the party still agrees to pay, it would ordinarily be reasonable for the lawyer to receive an amount equal to the lawyer's customary hourly fee (or the average of the lawyer's hourly fees). The committee added that DR 2-106's bar on excessive legal fees did not apply, because the payment is for serving as a witness, not for legal services, and that a prior fee agreement already covering such testimony would make additional payment unreasonable.

Currency note

This opinion was issued in 1999, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. 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 Treat this page as historical context, not current guidance.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 who testifies as a fact witness be paid more than the statutory witness fee?

A: The opinion concluded yes, assuming the payment is legal: under DR 7-109(C)(2) a witness may receive reasonable compensation for loss of time, so long as the client knows only the statutory fee is required and still agrees to pay more.

Q: How much could the lawyer-witness be paid?

A: The opinion said it would ordinarily be reasonable to pay an amount equal to the lawyer's customary hourly fee, or the average of the lawyer's several hourly rates, because reasonable compensation reflects the market value of the witness's time.

Q: Could the lawyer's pay be tied to the testimony or the outcome?

A: No. The opinion, following N.Y. State 547, identified compensation contingent on the content of the testimony or the outcome of the case as the thing DR 7-109(C) expressly forbids.

Background and rules framework

The opinion interpreted DR 7-109(C)(2) of New York's former Code of Professional Responsibility, which limited non-expert witness compensation to reasonable amounts for loss of time, and distinguished DR 2-106 (excessive legal fees) and DR 5-101(B) (the advocate-witness rule) as inapplicable. The Model Rule analogues are Rule 3.4(b) (a lawyer shall not offer an inducement to a witness prohibited by law), Rule 3.7 (lawyer as witness), and Rule 1.5 (fees). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 3.4(b) (fairness to opposing party; witness inducements)
• MR 3.7 (lawyer as witness)
• MR 1.5 (fees)
• NY DR 7-109(C)(2); DR 2-106; DR 5-101(B)

Statutes:

• N.Y. C.P.L.R. 8001 (statutory witness attendance and mileage fees)

Other opinions cited:

• N.Y. State 547 (1982): reasonable witness compensation and the contingent-fee bar
• N.Y. State 668 (1994): paying a witness for preparation and trial time
• ABA Formal Op. 96-402: compensating a non-expert witness for time

See also

• NY State Bar Op. 729: Charging interest on a contingency client's unpaid disbursements
• NY State Bar Op. 717: Paying medical liens from settlement funds

Source

• Landing page: https://nysba.org/opinion-714/