Can a Texas lawyer help a client pay the client's former lawyer to testify as a fact or expert witness in a civil case?
Texas Ethics Opinion 621: Paying a Client's Former Lawyer to Serve as a Witness
Short answer: Per the Committee, a lawyer may cooperate with the client in paying the client's former lawyer reasonable compensation for loss of time as a fact witness under Rule 3.04(b)(2), and a reasonable fee for expert testimony under Rule 3.04(b)(3), so long as the payment is reasonable and not contingent on the content of the testimony or the outcome of the case.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Texas Disciplinary 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. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
A Texas lawyer represents the husband in a divorce in which the validity of a premarital agreement is at issue. The out-of-state lawyer who represented the husband when the agreement was prepared is a fact witness about the drafting and signing, and a potential expert witness on the agreement's validity and construction under the other state's law. That former lawyer asks to be compensated for testifying, and the husband is willing to pay.
The Committee applies Rule 3.04(b), which bars paying a witness compensation contingent on the content of the testimony or the outcome of the case, but expressly permits a lawyer to advance, guarantee, or acquiesce in paying a witness's reasonable expenses, reasonable compensation for loss of time in attending or testifying, and a reasonable fee for an expert witness's professional services. Under Rule 3.04(b)(2), the lawyer may compensate, or cooperate with the client in compensating, the former lawyer as a fact witness for reasonable loss-of-time compensation; under Rule 3.04(b)(3), a reasonable fee may be paid if the former lawyer testifies as an expert. What counts as "reasonable compensation" for a fact witness and "a reasonable fee" for an expert are fact questions.
The Committee adds that because the former lawyer participates as a witness, not as counsel, Rule 3.08's advocate-witness restrictions are not implicated. It also observes that calling the former lawyer could result in the loss of work-product and attorney-client privileges otherwise applying to information the former lawyer holds, but characterizes that as a matter of strategy for the lawyer and client, not an ethical consideration.
In practice
Under this opinion, and under the Texas rule as it stood at the time, a lawyer may cooperate with a client in paying the client's former lawyer to testify in a civil proceeding: reasonable compensation for loss of time as a fact witness under Rule 3.04(b)(2), and a reasonable fee for professional services if the former lawyer testifies as an expert under Rule 3.04(b)(3). The Committee treats the reasonableness of each amount as a fact question, and stresses that payment may not be contingent on the content of the testimony or the outcome. It notes Rule 3.08 is not implicated because the former lawyer serves as a witness rather than counsel, and that any resulting loss of privilege is a strategic, not ethical, matter.
Common questions
Q: Can I help my client pay a former lawyer to be a witness?
A: Per Opinion 621, yes. Rule 3.04(b)(2) permits the lawyer to cooperate in paying the former lawyer reasonable compensation for loss of time in attending or testifying as a fact witness.
Q: What if the former lawyer testifies as an expert?
A: Then under Rule 3.04(b)(3) a reasonable fee may be paid for the former lawyer's professional services as an expert. What is reasonable is a question of fact depending on the circumstances.
Q: Are there limits on the payment?
A: Yes. The payment must be reasonable and, under Rule 3.04(b), may not be contingent on the content of the witness's testimony or on the outcome of the case.
Q: Does the advocate-witness rule (Rule 3.08) apply?
A: No. The Committee states that because the former lawyer participates as a witness and not as counsel, Rule 3.08's restrictions on acting as both advocate and witness are not implicated.
Background and rules framework
The opinion interprets Texas Disciplinary Rule 3.04(b), including subsections (b)(2) (reasonable compensation for a witness's loss of time) and (b)(3) (a reasonable fee for an expert witness's professional services), which correspond to ABA Model Rule 3.4. It also references Rule 3.08 (lawyer as witness) to note that rule is not implicated where the former lawyer serves only as a witness.
Citations and references
Rules of Professional Conduct:
- MR 3.4 (fairness to opposing party and counsel; witness compensation)
- Texas Disciplinary Rules 3.04(b), 3.04(b)(2), 3.04(b)(3), and 3.08
See also
- TX Ethics Op. 614: Conditioning Settlement on an Affidavit Acceptable to the Client
- TX Ethics Op. 682: Firm Lawyer as Advocate When a Colleague Is a Witness
- TX Ethics Op. 676: Retaining or Disclosing to an Expert to Disqualify Them
Source
- Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-621/
- Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_621.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
QUESTION PRESENTED
Do the Texas Disciplinary Rules of Professional Conduct permit a lawyer to cooperate with his client in paying the client’s former lawyer for serving as a witness in a civil proceeding?
STATEMENT OF FACTS
A Texas lawyer represents the husband in a divorce proceeding in which the validity of a premarital agreement is at issue. The couple signed the agreement while living in another state. The out-of-state lawyer who represented the husband in preparing the premarital agreement is a fact witness regarding the circumstances of the agreement’s drafting and signing. This lawyer is also a potential expert witness regarding the agreement’s validity and construction under the laws of the state in which it was signed. The lawyer who represented the husband in drafting the premarital agreement asks to be compensated for testifying in the Texas divorce proceeding. The husband is willing to pay such compensation.
DISCUSSION
Rule 3.04 of the Texas Disciplinary Rules of Professional Conduct addresses the compensation of witnesses and states in relevant part:
“A lawyer shall not:
. . . .
(b) falsify evidence, counsel or assist a witness to testify falsely, or pay, offer to pay, or acquiesce in the offer or payment of compensation to a witness or other entity contingent upon the content of the testimony of the witness or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of:
(1) expenses reasonably incurred by a witness in attending or testifying;
(2) reasonable compensation to a witness for his loss of time in attending or testifying;
(3) a reasonable fee for the professional services of an expert witness.”
Rule 3.04(b)(2) permits the client’s lawyer in the divorce proceeding to compensate, or to cooperate with his client in compensating, the client’s former lawyer for his service as a fact witness, provided that such payment is reasonable compensation for loss of time in attending or testifying in the divorce proceeding. Moreover, under Rule 3.04(b)(3), if the client’s former lawyer testifies as an expert witness, “a reasonable fee” may be paid for the former lawyer’s service as an expert. What constitutes “reasonable compensation” paid to a fact witness and what is “a reasonable fee” for an expert witness are questions of fact that will depend on the circumstances.
Because the client’s former lawyer is participating in the divorce proceeding as a witness and not as counsel, the restrictions of Rule 3.08 on a lawyer’s acting as both advocate and witness in a proceeding would not be implicated. It should be noted that the decision to call the client’s former lawyer as a witness could, depending on the circumstances, result in the loss of work product and attorney-client privileges that would otherwise apply to information that the client’s former lawyer possesses. These possible consequences would, however, be a matter of strategy for the lawyer and client and not an ethical consideration.
CONCLUSION
The Texas Disciplinary Rules of Professional Conduct permit a lawyer to cooperate with his client in paying the client’s former lawyer to serve as a fact witness in a civil proceeding if the payment is reasonable compensation for the former lawyer’s loss of time in attending or testifying in the proceeding. If the client’s former lawyer testifies as an expert witness, the compensation with respect to such testimony must be a reasonable fee for the professional services of an expert witness.
Tex. Comm. On Professional Ethics, Op. 621 (2012)