May a lawyer pay an expert witness a contingent fee?
Apply this to your situation
This page answers the general question as of 1989. Ask about yours and see what the current Washington Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
The inquiry concerned paying a contingent fee to an expert witness. The committee analyzed the question under RPC 3.4(b), Washington's rule on fairness to opposing party and counsel.
The committee was of the opinion that the question is governed by RPC 3.4(b), which provides that a lawyer shall not offer an inducement to a witness that is prohibited by law. It added that whether a contingent fee is prohibited by law is a legal question the committee could not answer, leaving that determination outside its advisory role.
Currency note
This opinion was issued in 1989, before the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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: Which rule governs a contingent fee to an expert witness?
A: RPC 3.4(b), which bars a lawyer from offering a witness an inducement that is prohibited by law.
Q: Did the committee say a contingent expert fee is allowed?
A: No. It said whether a contingent fee is prohibited by law is a legal question it could not answer, so it did not resolve the permissibility of the arrangement.
Background and rules framework
RPC 3.4(b), Washington's counterpart to ABA Model Rule 3.4, addresses fairness to the opposing party and counsel and prohibits offering a witness an inducement prohibited by law. The committee identified that rule as the governing provision but declined to decide the embedded legal question of whether a contingent expert fee is prohibited by law.
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 3.4 (fairness to opposing party and counsel)
- Washington RPC 3.4(b)
See also
- ABA Formal Op. 96-402: Paying fact witnesses for time
- ABA Formal Op. 93-378: Contacting opposing experts
- AL Ethics Op. 1983-77: Paying an investigator to locate witnesses
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=334
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Committee considered your inquiry concerning the payment of a contingent fee to an expert witness. The Committee was of the opinion that the question is governed by RPC 3.4(b) which provides that a lawyer shall not offer an inducement to a witness that is prohibited by law. Whether a contingent fee is prohibited by law is a legal question which the Committee cannot answer.
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