May a lawyer pay a fact witness more than the statutory daily attendance fee and mileage to testify?

Plain-English summary

The committee was asked whether it is unethical for a lawyer to pay, or arrange to pay, witnesses more than the statutory daily rate plus mileage. It began with Canon 39, which permits interviewing witnesses but directs the lawyer to avoid any suggestion calculated to induce a witness to suppress or deviate from the truth, and noted the Canon itself says nothing about witness fees. Drawing on Drinker's Legal Ethics, the committee adopted the distinction that a lawyer may not bargain with a witness as a condition of giving evidence or pay a contingent fee to a witness, but may pay actual expenses and reasonable compensation to persons who cannot afford to testify at statutory fees, with no attempt to influence testimony and with disclosure to the court and jury.

Applying that, the committee held it is not unethical to pay a lay witness his wages or compensate him for loss of time from his business, plus reasonable transportation. It drew a firm line: the compensation must simply reimburse the witness for the loss he would incur on an average daily basis from earnings he would otherwise have made, plus actual reasonable transportation. Anything more than that the committee would regard as "payment to testify" rather than "reimbursement of loss." If the witness is paid statutory fees and transportation, he may be paid only the difference between his actual financial loss and the statutory fees collected, and a person who incurs no financial loss from being called may not be compensated at all.

The committee added that expert-witness fees are questions of fact and law rather than ethics, except as the opinion described, and that adequate witness compensation, lay or expert, can also be a matter of law depending on the facts. Because it could not render opinions on questions of law, the committee referred the inquirer to treatises and an A.L.R. annotation on the compensation of witnesses.

Currency note

This opinion was issued in 1967, during the era of the Canons of Professional Ethics, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions. The principle restricting payments to witnesses survives in modern form in Rule 3.4 and its comments, but the current rule's text and treatment of witness compensation differ from Canon 39. Treat this page as historical context, not current guidance. Verify against current rules and any applicable law before relying on any specific limitation mentioned here.

Common questions

Q: Could a lawyer pay a fact witness for the wages he lost by coming to testify?

A: Yes. The committee held it is not unethical to reimburse a lay witness for lost wages or time from his business, plus reasonable transportation expenses.

Q: Could a lawyer pay a witness more than his actual loss as an inducement?

A: No. The committee held that paying more than the witness's actual out-of-pocket loss would be "payment to testify," which it treated as improper.

Q: Could a witness who lost nothing still be paid for testifying?

A: No. The committee concluded that a person who incurs no financial loss from being called as a witness may not be compensated, because that would amount to payment to testify.

Background and rules framework

The opinion applied Canon 39 of the Canons of Professional Ethics, adopted in Oklahoma, which permitted witness interviews while barring inducements to alter testimony, and adopted the witness-payment distinctions stated in Drinker's Legal Ethics. The restriction on paying witnesses corresponds to today's Model Rule 3.4 and its comments. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 39 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): a lawyer may interview witnesses but must avoid inducing them to suppress or deviate from the truth.

Other references:

• Henry S. Drinker, Legal Ethics (pp. 75-76, 86, 152).
• C.J.S. Witnesses § 35 et seq.; 58 Am. Jur. §§ 874-884; Annotation, 77 A.L.R.2d 1184-1211 (compensation of witnesses).

See also

• Okla. Bar Ethics Op. 248: Contacting jurors after verdict
• Okla. Bar Ethics Op. 240: Lawyer-adjuster contacting a represented party

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-252/

Original opinion text

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

Adopted November 9, 1967

INQUIRY

This committee has been asked whether or not it would be unethical for an attorney to pay or arrange to have paid witnesses more than the daily rate which the statute provides plus mileage allowance.

OPINION

Canon 39 provides:

"A lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party. In doing so, however, he should scrupulously avoid any suggestion calculated to induce the witness to suppress or deviate from the truth, or in any degree to affect his free and untrammeled conduct when appearing at the trial or on the witness stand."

The Canon itself makes no reference to payment of witness fees.

In Henry Drinker's "Legal Ethics" pages 75 and 76, Mr. Drinker says:

"A lawyer may not participate in a bargain with a witness as a condition of his giving evidence, but this does not preclude the payment of actual expenses and reasonable compensation to persons who cannot afford to come and testify at the statutory fees, with no attempt to influence their testimony, the arrangement being disclosed to the court and jury."

On page 86 of Mr. Drinker's book, he states:

"… A lawyer may not agree to pay a contingent fee to a witness, nor advertise for a witness to testify to stated fact; although he may advertise for witnesses to a particular event or transaction."

Mr. Drinker on page 152 of his book states:

"A lawyer may not advertise for witnesses to testify to stated facts although he may advertise as to witnesses of a particular event or transaction. A lawyer may not offer a contingent fee to a witness, but may pay a witness for waiving his privilege not to testify, notice being given to the court, jury, and counsel, and may pay transportation expenses to an out-of-town witness without advising counsel and the court."

This committee agrees with the statement of Mr. Drinker in his book and takes the position that it is not unethical to pay a lay witness his wages or compensate him for loss of time from his business plus reasonable transportation charges to testify. The committee, however, feels that the amount of compensation paid to a witness by reason of his attendance at court or for the purpose of taking a deposition must be a simple reimbursing for any loss the witness would incur on an average daily basis resulting from loss of compensation which he otherwise would have earned and actual reasonable transportation expenses to and from the court or place of taking the deposition and a payment of any more than this would be regarded by this committee as "payment to testify" as distinguished from "reimbursement of loss." The committee also holds that if the witness is paid his statutory fees and transportation, then in that event, he may be paid only the difference between his actual out of pocket financial loss and the statutory fees which he has collected. A person who incurs no financial loss as a result of being called as a witness may not be compensated since this would amount to "payment to testify."

This committee holds that fees for expert witnesses are questions of fact and law and are not a matter of ethics, except to the extent that we have pointed out in this opinion. It might also be pointed out that the question of adequate compensation to a witness, both lay and expert, could be not only a matter of ethics but also a matter of law, dependent upon the facts and circumstances.

Since we, under our rules, cannot render opinions on questions of law, we refer you to C.J.S. Witnesses, Section 35, et seq., and Compensation of Witnesses in West's various state digests Key No. 24, et seq.; also 58 American Jurisprudence Section 874-884, and an annotation appearing in 77 A.L.R.2d page 1184-1211, which discusses the question of compensation of witnesses in detail.