Must a lawyer pay an expert witness's fees when the lawyer subpoenaed the expert at the client's request?

Plain-English summary

The inquiry concerned a lawyer's responsibility to pay witness fees for an expert witness the lawyer had subpoenaed at the client's request, where the expert was required to appear in court on three consecutive days only to testify briefly at the end of the trial.

The committee concluded that because a lawyer is permitted to issue subpoenas over the lawyer's signature as an officer of the court, the failure to pay witness fees when requested, or requiring a witness unnecessarily to spend an unreasonable amount of time sitting in court, is prejudicial to the administration of justice and violates RPC 8.4(d).

Currency note

This opinion was issued in 1987, before the Washington State Bar Association's adoption of the 2006 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 Treat this page as historical context, not current guidance.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: Does a lawyer have to pay an expert the lawyer subpoenaed at the client's request?

A: The committee concluded the lawyer must pay the witness fees when requested; not doing so violates RPC 8.4(d) as conduct prejudicial to the administration of justice.

Q: Why does the duty rest on the lawyer who issued the subpoena?

A: The committee reasoned that the lawyer issues subpoenas over the lawyer's signature as an officer of the court, so the lawyer is responsible for the witness fees and for not causing the witness to wait an unreasonable time.

Background and rules framework

The opinion applied Washington RPC 8.4(d) (conduct prejudicial to the administration of justice, corresponding to ABA Model Rule 8.4(d)), tying the duty to pay a subpoenaed expert's fees to the lawyer's role as an officer of the court who issues the subpoena.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 8.4 (misconduct; conduct prejudicial to the administration of justice); Washington RPC 8.4(d)

See also

• WA Ethics Op. 1908: Paying a Treating Physician Witness
• ABA Formal Op. 96-402: Paying Fact Witnesses for Time
• FL Bar Ethics Op. 72-27: Advancing Witness Fees

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1133

Original opinion text

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

Advisory Opinion: 1090
Year Issued: 1987
RPC(s): RPC 8.4(d)
Subject: Duty to pay expert witness fees when expert subpoenaed at client's request

The Committee considered your inquiry concerning your responsibility to pay witness fees for an expert witness who has been subpoenaed by you at the request of your client, and who was required to appear in court on three consecutive days, only to testify briefly at the conclusion of the trial. The Committee was of the opinion that as a lawyer is permitted to issue subpoenas over the lawyer's signature as an officer of the court, the failure of the lawyer to pay witness fees when requested or requiring a witness unnecessarily to spend an unreasonable amount of time sitting in court are prejudicial to the administration of justice and violate Rule 8.4(d) of the Rules of Professional Conduct.