Can a lawyer call a witness who is being paid a percentage of the recovery for testifying?

Plain-English summary

The Board was asked whether a lawyer for a plaintiff in a property-damage suit could, with propriety, put on the stand a witness the lawyer knew had a contract with the client to be compensated on a contingent basis (a designated percentage of any recovery) for attending court, assisting during trial, and testifying. The contingent compensation did not cover investigation and preparation the witness had earlier done for another party under definite compensation.

The Board answered in the negative. It relied on its Advisory Opinions Nos. 69 and 103, which had condemned arrangements employing an expert witness or investigator-witness on a contingent fee taken out of the lawyer's own contingent fee; the Board held that the witness here being paid contingently by the client himself did not change the principles. Quoting Advisory Opinion No. 103, the Board said the trial of a dispute should be an honest, earnest effort by all concerned, investigators and witnesses included, to develop the whole truth. Paraphrasing Advisory Opinion No. 108, it observed that it is unfortunate enough when a witness is, of necessity, an interested person, and that clients premeditatedly creating interested witnesses by such arrangements is improper and contrary to public policy; the proper conception of a witness does not contemplate voluntarily placing him in a position offering a temptation not to tell the whole truth. Quoting the New York County Lawyers Association's answer to question 110, the Board added that paying a witness "to tell the truth" is as subversive of justice as paying him to testify falsely. While payment beyond legal witness fees may sometimes be made to expert witnesses under proper circumstances, this case was not such a one, and a lawyer who knowingly permits a person to testify under these circumstances violates Rule 31.

Currency note

This opinion was issued in 1936, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The prohibition on contingent payments to witnesses persists in modern rules, though the rule text and numbering have changed. Subsequent rule amendments and 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 Treat this page as historical context, not current guidance.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: Could a witness be paid a percentage of the recovery for testifying?

A: No. The opinion held that knowingly calling a witness compensated contingently on the recovery is improper and contrary to public policy, regardless of whether the lawyer or the client pays.

Q: Did it matter that the client, not the lawyer, paid the witness?

A: No. The Board said the witness being paid contingently by the client himself did not change the principles condemned in its earlier opinions.

Q: Are payments to expert witnesses ever allowed?

A: The opinion acknowledged that payment beyond legal witness fees may, under proper circumstances, be made to expert witnesses, but held this case was not such a one.

Background and rules framework

The opinion applied Rule 31 of the canon-era Oklahoma Rules of Professional Conduct, which enjoins a lawyer to improve the law and the administration of justice, and relied on Oklahoma Advisory Opinions Nos. 69, 103, and 108, and on the New York County Lawyers Association's answer to its question 110. It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 31 (1929 Oklahoma Rules of Professional Conduct): a lawyer's duty to improve the law and the administration of justice.

Other opinions cited:

• Oklahoma Advisory Opinions Nos. 69, 103, and 108: condemning contingent compensation of witnesses and investigators.
• New York County Lawyers Association, answer to question 110: paying a witness "to tell the truth" is as subversive of justice as paying for false testimony.

See also

• Okla. Bar Ethics Op. 122: Advancing litigation expenses for an indigent client

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-128/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Adopted October 23, 1936

The Board is in receipt of the following inquiry:

"May a member of the State Bar who has accepted employment from a private individual client, with propriety, place upon the witness stand to testify a witness with whom the attorney has full knowledge the client has entered into a contract, the terms of which are that, for the attendance at court and such assistance as is rendered during the trial and for the testimony given, the witness is to be compensated on a contingent basis of a designated per cent of the amount of the recovery, if any? The client occupies the position of plaintiff in the case. The suit is one for alleged damages to property of the plaintiff. The contingent compensation to the witness does not cover investigation and preparation which the witness had theretofore made. On the other hand, the witness had made the investigation and preparation of the general territory covered under employment and with definite compensation from another party."

In response:

The inquirer must be answered in the negative.

In Advisory Opinion No. 69 (Vol. 1, Adv. Op. p. 131), a proposed arrangement whereby a client was to employ an expert witness on a contingent fee basis, the amount of the fee to be deducted from the amount of the contingent fee to be received by the member of the bar employed by the client was, for "obvious reasons," condemned.

In Advisory Opinion No. 103 (Vol. 1, Adv. Op. p. 178), a proposed arrangement whereby a member of the bar who had accepted employment upon a contingent fee basis, was to employ an accountant as an investigator and witness upon an agreed compensation contingent upon recovery, to come out of the contingent fee of the member of the bar was also condemned.

In the present inquiry the witness is to be paid upon a contingent basis, both as to recovery and amount, by the client himself. This does not change the principles involved.

In Advisory Opinion No. 103 (Vol. 1, Adv. Op. p. 178) it was said:

"The trial of a dispute in a court or before an administrative body ought to be an honest and earnest effort by members of the bar and all persons concerned, be they investigators or witnesses, to develop the whole truth and all the facts."

Paraphrasing the language of Advisory Opinion No. 108, (1 Adv. Op. p. 178), "It is unfortunate enough when, ex necessitate, a witness is an interested person; and certainly the practice of clients premeditatingly creating persons into interested witnesses by arrangements such as suggested in the inquiry is improper and is contrary to public policy. There may be persons who are of such strong moral stamina, high honor and self sacrificing spirit as to enable them to withstand even a subconscious temptation to flavor their testimony in their self interest, but the proper conception of a witness does not contemplate the voluntary placing of him in a position which would offer a possible temptation to the average man in his self interest, not to tell the truth, the whole truth and nothing but the truth. To acquiesce in the arrangement suggested would not be conducive to the proper administration of justice."

In answer to question number 110 the committee on Professional Ethics of the New York County Lawyers Association, said:

"The payment of a sum of money to a witness 'to tell the truth' is as clearly subversive of the proper administration of justice as to pay him to testify to what is not true."

While payment in excess of legal witness fees, under proper circumstances, may be made to expert witnesses the case presented is not such an one.

Rule 31 of the rules of professional conduct enjoins upon a member of the bar to improve, not only the law, but the administration of justice. A member of the bar who knowingly permits a person to testify under the circumstances detailed in the inquiry violates this rule.