Can a lawyer pay someone an hourly fee to help find and explain evidence in a case when that person might also testify?
NY State Bar Ethics Opinion 668: Reasonable compensation of a witness
Short answer: The opinion concluded that a lawyer may pay an individual whatever the client consents to for pre-trial fact-finding services, because DR 7-109(C) restricts only the compensation of witnesses; once the individual testifies, payment is limited to reasonable compensation for time, and paying a fact-finder to perform work that would otherwise be the lawyer's may make the lawyer's contingent fee unreasonable.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
A lawyer pursuing a fraud and conspiracy case needed an individual to find and explain documents, tape recordings, and photographs said to prove the claim, work expected to take 50 to 60 hours at $150 per hour. The individual would attend interviews, examine and explain evidence, and assist in fact-finding, and might also be required to testify at trial. The lawyer asked whether paying the fee was proper.
The committee located the rule in DR 7-109(C), which bars paying a witness compensation contingent on the content of testimony or the outcome of the case, but allows advancing a witness's reasonable expenses, reasonable compensation for loss of time in attending or testifying, and a reasonable expert fee. The committee read that rule to govern only "witnesses," that is, people testifying or attending trial. It therefore does not reach the separate situation of retaining someone as an assistant in the fact-finding process, so long as the arrangement is not a pretext to evade DR 7-109(C). An individual who does testify is entitled to compensation only as limited by DR 7-109(C).
For the pre-trial fact-finding here, the committee found no ethical impropriety in paying the individual $150 per hour with the client's consent, citing Alabama Op. 83-77 and Maryland Op. 83-38 for the distinction between paying for information or investigation and paying for testimony. It added two cautions drawn from other duties: the lawyer must closely monitor the nonlawyer's participation, and must ensure the lawyer's own fee is not excessive (DR 2-106(A)). The committee noted that where a paid fact-finder performs functions the attorney would traditionally perform, the lawyer's contingent fee percentage may become unreasonable (N.Y. State 572 (1985)).
Currency note
This opinion was issued in 1994, 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 pay an hourly fee to someone helping investigate and explain evidence?
A: Under this opinion, yes, with the client's consent. The committee held DR 7-109(C) governs only witnesses, so paying for pre-trial fact-finding by a non-witness assistant is not improper, absent a pretext to evade the witness-payment rule.
Q: What changes if that person ends up testifying?
A: Once the individual testifies, payment is limited by DR 7-109(C) to reasonable compensation for loss of time and expenses; compensation may not be contingent on the content of testimony or the outcome.
Q: Does paying a fact-finder affect the lawyer's own fee?
A: The committee cautioned that it can. If the paid individual performs work the lawyer would traditionally do, the lawyer's contingent fee percentage may become unreasonable under DR 2-106(A), and the total the lawyer collects cannot be excessive.
Background and rules framework
The opinion interpreted DR 7-109(C) of New York's former Code (compensation of witnesses) and DR 2-106(A) (reasonable fees). The closest Model Rule analogues are Rule 3.4 (fairness to opposing party and counsel, which addresses inducements to witnesses), Rule 1.5 (fees), and Rule 5.3 (responsibilities regarding nonlawyer assistance). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 3.4 (fairness to opposing party and counsel; witness payments)
- MR 1.5 (fees)
- MR 5.3 (responsibilities regarding nonlawyer assistants)
- NY DR 7-109(C); DR 2-106(A)
Other opinions cited:
- Alabama Op. 83-77; Maryland Op. 83-38: distinguishing payment for investigation from payment for testimony
- N.Y. State 576 (1986): a lawyer may not collect an excessive fee
- N.Y. State 572 (1985): displacing the lawyer's work may affect a reasonable contingent fee
See also
- NY State Bar Op. 962: Paying a witness's travel expenses and legal fees
- NY State Bar Op. 1140: Representing a testifying expert witness
- NY State Bar Op. 714: Compensation of a lawyer who is also a witness
Source
- Landing page: https://nysba.org/opinion-668/