How much can a lawyer pay a fact (nonexpert) witness for testifying?
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This page answers the general question as of 1988. Ask about yours and see what the current Wisconsin Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
Opinion E-88-9 asked what limitations are placed on lawyers' compensation of nonexpert witnesses. The committee began with SCR 20:3.4(b), which prohibits a lawyer from offering an inducement to a witness that is prohibited by law. Quoting Wolfram's Modern Legal Ethics and the Annotated Model Rules, it stated that it is generally permissible to pay reasonable amounts to witnesses to compensate for lost wages incurred in testifying, for travel and similar expenses, and to pay any lawful witness fee.
The committee acknowledged that SCR 20:3.4(b) provides little guidance on what constitutes an inducement, and that the rule could be read to imply that all inducements are proper except those clearly prohibited by law. It concluded, however, that inducements to witnesses that exceed their actual out-of-pocket losses would support findings of SCR 20:3.4(b) violations. It added, as a practical matter, that opposing counsel's eliciting testimony about excessive witness compensation could adversely affect the witness's credibility, the client's case, and the assessment of the lawyer's reasonableness under the rule's otherwise amorphous prohibition.
Currency note
This opinion was issued in 1988, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). The fairness-to-counsel rule SCR 20:3.4 was later revised. 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 Treat this page as historical context, not current guidance.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 for testifying?
A: Per the opinion, a lawyer may pay reasonable amounts to compensate for lost wages, travel and similar expenses, and any lawful witness fee, under SCR 20:3.4(b).
Q: What payment crosses the line?
A: The committee concluded that inducements exceeding the witness's actual out-of-pocket losses would support a finding that the lawyer violated SCR 20:3.4(b).
Q: Is there a practical risk beyond discipline?
A: Yes. The committee noted that opposing counsel could elicit testimony about excessive witness payments to damage the witness's credibility and the client's case.
Background and rules framework
The opinion interpreted SCR 20:3.4(b) / Model Rule 3.4 (fairness to opposing party and counsel), specifically the prohibition on offering a witness an unlawful inducement, as applied to compensating nonexpert (fact) witnesses.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20:3.4(b) / Model Rule 3.4 (fairness; inducements to witnesses)
Other authorities cited:
- C. Wolfram, Modern Legal Ethics (1986); Annotated Model Rules of Professional Conduct (ABA 1984)
See also
Source
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