Is a lawyer who subpoenas an expert witness personally responsible for paying the expert's fee?

Plain-English summary

The inquiry concerned a lawyer's obligation to pay fees for expert witnesses the lawyer subpoenaed at a client's request and for which the client had agreed to pay. The committee was of the opinion that when a lawyer issues a subpoena, the lawyer does so under the lawyer's authority as an officer of the court, and that failing to pay witness fees when requested is a violation of Rule 8.4(d) because it is prejudicial to the conduct of justice.

The committee was of the opinion that the lawyer could make it clear to the expert witness that the client was going to be responsible for the costs, or, in the alternative, could require that the client pay the costs in advance.

Currency note

This opinion was issued in 1987, before the 2006 revisions to the Washington Rules of Professional Conduct. The misconduct rule then numbered RPC 8.4(d) corresponds to Model Rule 8.4(d) and was later amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: If a lawyer subpoenas an expert, who is on the hook for the witness fee?

A: Per the opinion, the lawyer is, by virtue of issuing the subpoena as an officer of the court; the committee said failing to pay the requested fee violates RPC 8.4(d).

Q: Can the lawyer make the client pay the expert instead?

A: The committee said the lawyer could make it clear to the expert that the client was going to be responsible for the costs, or alternatively could require the client to pay the costs in advance.

Q: Why is non-payment treated as an ethics violation rather than a private fee dispute?

A: The committee tied it to the lawyer's role: a subpoena is issued under the lawyer's authority as an officer of the court, so failing to pay the witness fee is prejudicial to the conduct of justice under RPC 8.4(d).

Background and rules framework

The opinion applies Washington RPC 8.4(d) (conduct prejudicial to the administration of justice), corresponding to Model Rule 8.4(d). The committee located the duty in the lawyer's status as an officer of the court when issuing a subpoena, and treated arranging for the client to bear the cost (by notice to the expert or by advance payment) as the way to keep the obligation off the lawyer.

Citations and references

Rules of Professional Conduct:

• Washington RPC 8.4(d) (conduct prejudicial to the administration of justice), corresponding to Model Rule 8.4(d).

See also

• Florida Bar Ethics Op. 67-44: advancing a subpoenaed expert's witness fee
• ABA Formal Op. 93-379: billing for fees and expenses, including third-party expert costs
• Alabama Bar Op. 1983-77: paying an investigator to produce witnesses and documents

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=193

Original opinion text

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

Advisory Opinion: 1094
Year Issued: 1987
RPC(s): RPC 8.4(d)
Subject: Expenses of litigation; expert witness fee

The Committee considered your inquiry regarding the obligations of a lawyer to pay fees for expert witnesses subpoenaed by the lawyer at a client's request and for which the client had agreed to pay. The Committee was of the opinion that when a lawyer issues a subpoena the lawyer is doing so under his authority as an officer of the court, and that failure to pay witness fees when requested is a violation of Rule 8.4(d) as it is prejudicial to the conduct of justice. The Committee was of the opinion that the lawyer could make it clear to the expert witness that the client was going to be responsible for the costs, or, in the alternative, could require that the client pay the costs in advance.