I'm calling the testator's treating physician as both a fact witness and an expert on competency in a will contest. Can I pay the physician for the expert testimony?

Plain-English summary

The inquiring attorney represents the proponent of a will in a contested probate matter and intends to call the testator's treating physician both as a fact witness (about the testator's treatment) and as an expert witness (on the testator's competency). The attorney proposed to compensate the physician for the expert testimony and asked whether that was permissible.

The panel applied Rule 3.4(b), which bars a lawyer from offering an inducement to a witness that is prohibited by law, and pointed to the rule's commentary, which states it is not improper to compensate an expert witness on terms permitted by law, though the common-law rule in most jurisdictions bars paying an occurrence witness any fee for testifying or paying an expert witness a contingent fee. The panel then turned to Rhode Island case law establishing that a non-party expert cannot be compelled to give opinion testimony against the expert's will, citing Sousa v. Chaset (a urological expert who declined to testify could not be compelled) and Ondis v. Pion (a subpoenaed plastic surgeon who testified to facts he observed and treated could not be compelled to give a prognosis opinion). Because obtaining an expert's opinion testimony is necessarily voluntary, the panel reasoned that the substantive law permits compensating the physician for that opinion testimony, and concluded the compensation is not a prohibited inducement under Rule 3.4(b), notwithstanding that the same physician will also testify to facts within the treating relationship.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, an attorney may compensate a treating physician for the physician's expert opinion testimony at trial without violating Rule 3.4(b), even where the physician will also testify as a fact witness in the same case, because the substantive law permits paying for opinion testimony that cannot be compelled.

Common questions

Q: My expert witness also happens to be a fact witness in the same case. Does that change whether I can pay for the expert testimony?

A: No, according to this opinion. The panel found no Rule 3.4(b) problem with paying for the expert opinion component of the testimony even where the same witness also testifies to facts, because the two roles do not change the voluntary nature of the opinion testimony.

Q: Why is it permissible to pay an expert witness but not an ordinary fact witness?

A: The opinion explains that a non-party expert cannot be compelled to give opinion testimony against the expert's will, citing Sousa v. Chaset and Ondis v. Pion, so the substantive law permits compensating the expert to obtain that voluntary opinion testimony, unlike compelled fact testimony.

Q: Are there any limits on how much or how the expert can be paid?

A: The opinion does not set a specific limit; it notes only that the Rule 3.4 commentary permits compensating an expert witness "on terms permitted by law," while flagging that the common-law rule in most jurisdictions bars paying an expert witness a contingent fee.

Background and rules framework

The opinion applies Rhode Island Rule 3.4(b) (Fairness to Opposing Party and Counsel), which bars a lawyer from offering a witness an inducement prohibited by law, read together with its commentary permitting reasonable compensation of expert witnesses on terms permitted by law. The panel's analysis rests on Rhode Island Supreme Court precedent establishing that a non-party expert's opinion testimony cannot be compelled, which the panel treats as the basis for concluding that compensating such testimony is lawful and therefore not an improper inducement.

Citations and references

Rules of Professional Conduct:

• MR 3.4(b) (fairness to opposing party and counsel; prohibited inducements to witnesses)

Statutes:

• None cited.

Cases:

• Sousa v. Chaset, 519 A.2d 1132, 1136 (R.I. 1987): a non-party expert who has been subpoenaed but not engaged cannot be compelled to give opinion testimony against the expert's will.
• Ondis v. Pion, 497 A.2d 13, 18 (R.I. 1985): a subpoenaed physician could be compelled to testify to facts observed while treating a patient, but not to offer a medical-prognosis opinion.

Other opinions cited:

• None cited.

See also

• Massachusetts Bar Op. 91-3: Paying a Fact Witness for Their Time
• Alaska Ethics Op. 93-2: Paying Witnesses for Testimony

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202011-01.pdf

Original opinion text

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

Final

                          Rhode Island Supreme Court
                   Ethics Advisory Panel Opinion No. 2011-01
                            Issued March 16, 2011

FACTS

   The inquiring attorney represents a proponent of a will in a contested probate

matter. The inquiring attorney intends to call the treating physician of the testator as a fact
witness at the trial. The inquiring attorney will also seek the expert opinion of the treating
physician on the issue of the testator's competency. The inquiring attorney proposes to
compensate the physician for the physician's expert testimony.

ISSUE PRESENTED

    Is it a violation of the Rules of Professional Conduct to compensate a treating

physician for his or her expert testimony at trial where the physician will also provide
factual testimony?

OPINION

   No. Compensating a treating physician for his or her expert opinion at trial is not

an inducement to a witness which is prohibited by Rule 3.4(b) of the Rules of Professional
Conduct, where the treating physician will also testify as a fact witness.

REASONING

    Rule 3.4 (b) of the Rules of Professional Conduct states that a lawyer shall not

           (b) falsify evidence, counsel or assist a witness to
           testify falsely, or offer an inducement to a witness
           that is prohibited by law….

    The commentary to Rule 3.4 explains:

               [3]With regard to paragraph (b), it is not improper
               to pay a witness's expenses or to compensate an
               expert witness on terms permitted by law. The
               common law rule in most jurisdictions is that it is
               improper to pay an occurrence witness any fee for
               testifying and that it is improper to pay an expert
               witness a contingent fee.

Final Op. 2011-01
Page 2

    In the instant inquiry, the inquiring attorney plans to call the testator's treating

physician as a fact witness and also as an expert witness. The inquiring attorney proposes
to compensate the physician for his opinion testimony. The Panel is of the opinion that the
inquiring attorney may properly compensate the treating physician for his expert opinion.
A non-party expert cannot be compelled to provide opinion testimony against his or her
will. See Sousa v. Chaset, 519 A.2d 1132, 1136 (R.I. 1987); Ondis v. Pion, 497 A.2d 13,
18 (R.I. 1985). In Sousa, the plaintiff sought to subpoena a urological expert who did not
want to testify. Affirming the trial court who sustained the defendant's objection, the
Rhode Island Supreme Court stated that "[a]n expert who has not been engaged, but only
subpoenaed, cannot be compelled to give opinion testimony against his or her will". Souza
at 1136.

    In Ondis, the plaintiff subpoenaed a plastic surgeon who testified factually about

the plaintiff's injuries that he had observed and had treated. Ondis at 18. The surgeon
declined to offer any opinions about the medical prognosis relating to the injuries. Id.
Holding that the trial court did not err in refusing to compel the physician to testify, the
Court stated:

                It is the obligation of a party who desires expert
                testimony to obtain the services of a qualified
                person on a voluntary basis. We believe that
                compelling expert testimony would in essence
                involve a form of involuntary servitude that
                should normally not be inflicted upon a person
                merely because of his professional expertise.

     The substantive law permits the inquiring attorney to compensate a treating

physician for his or her opinion testimony. Accordingly, the Panel concludes that
compensating a treating physician for his or her expert opinion at trial is not an inducement
to a witness which is prohibited by Rule 3.4(b), where the treating physician will also
testify as a fact witness.