Can a West Virginia lawyer use, or have a client use, an organization that obtains a medical expert under a contingency fee contract?

Plain-English summary

The Lawyer Disciplinary Board was asked whether Rule 1.8(k) prohibits a lawyer from using, or having a client use, the services of an organization that obtains a medical expert, generally in personal injury cases. In the arrangement, the organization enters a 15% contingency fee contract with the client and then pays the medical expert a noncontingent fee for the expert's work.

The Board explained that West Virginia's Rule 1.8(k) bars a lawyer from paying, offering to pay, or acquiescing in the payment of compensation to a witness, "or to anyone referring a lawyer to a witness," contingent upon the content of the witness's testimony or the outcome of the case, while permitting advance or payment of a witness's reasonable expenses, reasonable compensation for loss of time, and a reasonable fee for an expert witness's professional services. The Board noted the specific wording appears unique among Model Rules jurisdictions: West Virginia retained the language of former DR 7-109(C) and broadened it to include anyone referring a lawyer to a witness. The Board noted that the ABA Model Rules replaced DR 7-109(C) with Rule 3.4(b), whose comment states the common-law rule in most jurisdictions is that it is improper to pay an expert witness a contingent fee, and that Pennsylvania and South Dakota also do not permit such arrangements for expert testimony.

The Board concluded that, although such an organization's service may benefit those who cannot otherwise afford an expert, the arrangement violates the literal language of Rule 1.8(k), and any lawyer arranging or acquiescing in such an arrangement violates the Rules of Professional Conduct.

Currency note

This opinion was issued in 1997, before the West Virginia Supreme Court of Appeals' comprehensive 2015 revision of the West Virginia Rules of Professional Conduct (effective January 1, 2015). 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 Treat this page as historical context, not current guidance.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: Could a West Virginia lawyer use an organization that obtains a medical expert under a contingency fee?

A: No. The opinion concluded the arrangement violates the literal language of Rule 1.8(k), and any lawyer arranging or acquiescing in it violates the Rules.

Q: What made West Virginia's rule different from the Model Rules?

A: The Board explained that Rule 1.8(k) retained the old DR 7-109(C) language and broadened the prohibition to include anyone referring a lawyer to a witness, language the Board knew of in no other jurisdiction.

Q: Could the lawyer still pay an expert a reasonable fee?

A: Yes. The rule permitted a reasonable fee for an expert witness's professional services and reimbursement of expenses and loss of time; what it barred was compensation contingent on the testimony's content or the case's outcome.

Background and rules framework

The opinion interpreted West Virginia's Rule 1.8(k) (within Model Rule 1.8's conflicts framework) as it stood in 1997. The Board traced the rule's lineage from former DR 7-109(C) of the Code of Professional Responsibility through the ABA's replacement of that provision with Model Rule 3.4(b), noting the common-law rule against paying an expert witness a contingent fee. The Board cited out-of-state authority, including North Carolina Opinion 340 (1983) and Idaho Opinion 128 (1989), where some jurisdictions permitted such arrangements on the theory that the organization rather than the lawyer contracts with the client and the lawyer does not share fees with a non-lawyer.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.8 / WV Rule 1.8(k) (no compensation to a witness, or to anyone referring a lawyer to a witness, contingent on testimony or outcome)
• Model Rule 3.4 / WV Rule 3.4(b) (falsifying evidence; common-law bar on contingent expert fees)

Other opinions cited:

• North Carolina Opinion 340 (Oct. 18, 1983)
• Idaho Opinion 128 (Sept. 23, 1989)

See also

• WV Ethics Op. 2005-02: Legal Funding Plans
• ABA Formal Op. 96-402: Payments to Occurrence Witnesses
• Alabama Ethics Op. 1983-77: Payment to Investigator for Locating Witnesses

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e3c9fe06b3b45e80c.pdf

Original opinion text

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

L.E.I. 97-02

CONTINGENT FEE CONTRACTS WITH ORGANIZATIONS OR INDIVIDUALS OBTAINING EXPERT WITNESSES

The Lawyer Disciplinary Board has been asked to determine whether Rule 1.8(k) of the Rules of Professional Conduct prohibits a lawyer from using, or having his client use, the services of an organization which obtains a medical expert, generally in personal injury cases. The organization enters into a 15% contingency fee contract with the client. The organization then pays the medical expert a noncontingent fee for his or her work.

Rule 1.8(k) of the Rules of Professional Conduct states:

Rule 1.8. Conflict of interest: Prohibited transactions.
(k) A lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness or to anyone referring a lawyer to a witness, contingent upon the content of the witness's testimony or the outcome of the case. But a lawyer may advance, guarantee, acquiesce in the payment of:
(1) expenses reasonably incurred by a witness in attending or testifying.
(2) reasonable compensation to a witness for his loss of time in attending or testifying.
(3) a reasonable fee for the professional services of an expert witness. [emphasis supplied]

The specific wording of this Rule appears to be unique among those jurisdictions which have adopted the American Bar Association's Model Rules of Professional Conduct.

Prior to adoption of the Model Rules by West Virginia, DR7-109(C) of the West Virginia Code of Responsibility provided:

A lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of:
(1) expenses reasonably incurred by a witness in attending or testifying.
(2) reasonable compensation to a witness for his loss of time in attending or testifying.
(3) a reasonable fee for the professional services of an expert witness.

The ABA's Model Rules replaced DR7-109(C) with Rule 3.4(b), which provides:

A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.

The Comment to Rule 3.4(b) states, in pertinent part: "The common law rule in most jurisdictions is that it is improper . . . to pay an expert witness a contingent fee."

West Virginia's Rule 1.8(k) not only specifically retained the language of DR7-109(C) of the Code of Professional Responsibility, it broadened the prohibition to include anyone referring a lawyer to a witness. The Lawyer Disciplinary Board knows of no other jurisdiction which has this specific language. Nevertheless, both Pennsylvania and South Dakota do not permit such arrangements for expert testimony, even under the Model Rules. Other jurisdictions permit such arrangements because the organization or individual obtaining the expert witness would not actually be testifying and the client would contract directly with the organization so that the lawyer would not be sharing his or her legal fees with a non-lawyer. See e.g., North Carolina Opinion 340 (10/18/83); Idaho Opinion 128 (9/23/89).

Although the service provided by such organizations may be beneficial to those who cannot otherwise afford to obtain an expert witness, the arrangement violates the literal language of Rule 1.8(k) of the Rules of Professional Conduct. Any lawyer arranging or acquiescing in such an arrangement will be in violation of the Rules of Professional Conduct.

APPROVED this 17th day of October, 1997.

Paul M. Friedberg, Chairperson
Lawyer Disciplinary Board
State of West Virginia