Can a lawyer pay a retired or unemployed fact witness for the time spent preparing, traveling, and testifying, at a rate close to the wage the witness would otherwise earn?

Plain-English summary

Opinion E-89-17 asked whether, when a retired or unemployed nonexpert witness must spend a substantial but reasonable and necessary amount of time in preparation, travel, or testifying, a lawyer may compensate the witness for that time at a rate that approximates the hourly wage the witness would be earning if not unemployed or retired. The committee reaffirmed its earlier Formal Opinion E-88-9, which stated that it is generally permissible to pay reasonable amounts to witnesses to compensate for lost wages incurred in testifying and for travel and similar expenses, and to pay any lawful witness fee, quoting Wolfram's Modern Legal Ethics.

The committee reasoned that although unemployed or retired persons would not, by definition, lose wages as a result of being a witness, they are nonetheless deprived of time that would otherwise be devoted to other endeavors. When the time reasonably required of such a witness is substantial, the committee concluded it should be proper to reasonably compensate the witness for the loss of time, unless that compensation is prohibited by law, citing SCR 20:3.4(b). The committee added that whether compensation based on the unemployed or retired person's usual working wage would be reasonable is not a question it could definitively answer, and that the determination would have to be made on a case-by-case basis, referring again to Formal Opinion E-88-9.

Currency note

This opinion was issued in 1989, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). 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 Treat this page as historical context, not current guidance.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 time, not just expenses?

A: Reasonable amounts, yes. The committee concluded that a lawyer may pay reasonable amounts to compensate for lost wages, travel, and similar expenses, and lawful witness fees, reaffirming Formal Opinion E-88-9.

Q: What about a witness who is retired or unemployed and so loses no wages?

A: Compensation for lost time may still be proper. The committee concluded that when the time reasonably required is substantial, it should be proper to reasonably compensate such a witness for the loss of time, unless the law prohibits it (SCR 20:3.4(b)).

Q: Can the lawyer use the witness's former wage as the rate?

A: That is not settled. The committee concluded it could not definitively say whether a rate based on the witness's usual working wage is reasonable, and that the question must be decided case by case.

Background and rules framework

The opinion interpreted SCR 20:3.4 / Model Rule 3.4 (fairness to opposing party and counsel), in particular subsection (b) on the limits on compensating witnesses, applied to reasonable compensation of retired or unemployed nonexpert witnesses for their time. It reaffirmed prior Formal Opinion E-88-9.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:3.4 / Model Rule 3.4(b) (compensation of witnesses)

Other opinions cited:

• Wisconsin Formal Op. E-88-9 (reaffirmed)
• C. Wolfram, Modern Legal Ethics (1986) at 651

See also

• ABA Formal Op. 96-402: Payments to Occurrence Witnesses
• WI Ethics Op. E-91-4: Contacting Opposing Experts

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-89-17.pdf