Can a lawyer pay a fact witness more than the statutory subpoena fee to cover lost wages, and what limits apply?

Plain-English summary

A lawyer planned to subpoena a health care provider and another lay witness and wished to pay them more than the fee set by the Rules of Civil Procedure, to compensate for lost wages or income. The committee was asked whether such excess payment is allowed and what limits apply.

The committee declined to decide the legal question of when payments above the Rule 45 per diem are permitted, noting it opines only on ethical issues. Its ethical conclusion was conditional on the law. To the extent additional compensation is not allowed as a matter of law, paying it would violate Rule 3.4(b), which bars offering "an inducement to a witness that is prohibited by law." To the extent it is legally permissible, paying it would not violate Rule 3.4(b), and the lawyer may properly advance the cost under Rule 1.8(e) as a litigation expense. The committee added that it is always improper to pay a witness for the purpose of influencing the witness to testify falsely.

Currency note

This opinion was issued in 1993, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 a fact witness above the statutory subpoena fee?

A: The committee made it conditional on the law: where extra compensation is legally permissible, there is no ethical bar; where it is not allowed by law, paying it violates Rule 3.4(b).

Q: How can the lawyer treat a permissible payment?

A: The committee said the lawyer may properly advance it under Rule 1.8(e) as an expense of the litigation.

Q: Is there a payment that is always improper?

A: Yes. The committee said it is always improper to pay a witness for the purpose of influencing the witness to testify falsely.

Background and rules framework

The opinion applied Rule 3.4(b) (fairness to opposing party and counsel; no inducement to a witness prohibited by law) and Rule 1.8(e) (advancing litigation expenses), leaving the underlying legal question of permissible witness compensation under Rule 45 of the Rules of Civil Procedure to substantive law. The South Carolina rule numbers correspond to the like-numbered Model Rules.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 3.4 / Model Rule 3.4: fairness to opposing party and counsel; no inducement to a witness prohibited by law (Rule 3.4(b)).
• South Carolina RPC 1.8 / Model Rule 1.8: advancing litigation expenses (Rule 1.8(e)).

Other authority:

• Rule 45, South Carolina Rules of Civil Procedure (witness fee; legal question left undecided).

See also

• SC Bar Ethics Op. 94-21: Successor Lawyer and a Prior Fee
• SC Bar Ethics Op. 94-04: Litigation Financing Advice

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-36/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 93-36

A lawyer intends to subpoena a health care provider and another lay witness to testify in litigation. The lawyer would like to pay the witnesses a fee in excess of the fee established in the South Carolina Rules of Civil Procedure to compensate the witnesses for such things as lost wages or income.

Question:
May a lawyer pay a fee in excess of the fee established and allowed by the South Carolina Rules of Civil Procedure? If such payment is allowed, what limits exist?

Summary:
The Committee does not render an opinion as to the circumstances in which payments to witnesses in addition to the per diem established under the Rules of Civil Procedure would be allowed by law. To the extent payment is legally permissible, there would appear to be no ethical prohibition upon such payments being made.

Opinion:
This Committee renders opinions only as to ethical issues and thus does not render an opinion as to whether a lawyer may compensate lay witnesses in an amount in excess of the fee established in Rule 45 of the South Carolina Rules of Civil Procedure. To the extent that additional compensation may not be allowed as a matter of law, then any such payment would be a violation of Rule 3.4(b) which prohibits a lawyer from offering "an inducement to a witness that is prohibited by law." To the extent that additional compensation is legally permissible, however, then Rule 3.4(b) would not be violated by the payment of the compensation. The lawyer may properly advance such costs under Rule 1.8(e) as an expense of the litigation. It would, of course, be improper for the lawyer to offer any payments to a witness for the purpose of influencing the witness to testify falsely.