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Prof Responsibility • Candor
PR#073
Legal Definition
A lawyer may pay basic expenses of a witness and reasonable fees to expert witnesses, so long as such payments are not contingent on the content of the testimony.
Plain English Explanation
Witnesses are a vital part of introducing evidence into a trial. It would be pretty messed up if a witness was not only required to show up to court, but eat the cost of the experience themselves (especially if they live far away). Trials aren't charities.
Thus, lawyers can compensate witnesses, but there are important ethical limits to keep in mind. The basic rule is that a lawyer may pay reasonable expenses and fees to witnesses, as long as those payments are not contingent on the content of the testimony or the outcome of the case. In other words, no bribing witnesses to say things that help you.
How much a lawyer can compensate, and for what, depends on the type of witness:
For regular witnesses, lawyers can cover basic expenses for witnesses. This includes things like travel costs, lodging, and meals related to testifying. The key is that these expenses must be reasonable - no putting witnesses up at 5-star resorts or flying them first class.
For expert witnesses, lawyers can pay reasonable fees. Experts often charge for their time in reviewing materials, preparing reports, and testifying. Paying these fees is allowed, as long as the amount is reasonable for that type of expert.
Thus, lawyers can compensate witnesses, but there are important ethical limits to keep in mind. The basic rule is that a lawyer may pay reasonable expenses and fees to witnesses, as long as those payments are not contingent on the content of the testimony or the outcome of the case. In other words, no bribing witnesses to say things that help you.
How much a lawyer can compensate, and for what, depends on the type of witness:
For regular witnesses, lawyers can cover basic expenses for witnesses. This includes things like travel costs, lodging, and meals related to testifying. The key is that these expenses must be reasonable - no putting witnesses up at 5-star resorts or flying them first class.
For expert witnesses, lawyers can pay reasonable fees. Experts often charge for their time in reviewing materials, preparing reports, and testifying. Paying these fees is allowed, as long as the amount is reasonable for that type of expert.
Hypothetical
Hypo 1: Bob is defending Sam in a personal injury lawsuit. A key eyewitness to the accident lives 500 miles away. Bob offers to pay for the witness's airfare, two nights in a hotel, and meals while in town for the deposition. Result: This is permissible. Bob is covering reasonable and necessary expenses for the witness to testify, without any contingency on the content.
Hypo 2: Bob is representing Sam in a complex patent infringement case. He hires an expert in semiconductor technology, agreeing to pay $500 per hour for review and testimony, with a $5,000 bonus if Sam wins the case. Result: The hourly rate is likely fine, but the outcome-based bonus is improper. Expert fees cannot be contingent on the case result.
Hypo 3: Sam is suing his former employer for wrongful termination. Bob offers a former coworker $1,000 to testify on Sam's behalf, but only if the testimony is "helpful to our case." Result: This is clearly unethical. The payment is explicitly contingent on the content of the testimony, creating an improper incentive.
Hypo 4: Bob represents Sam in a slip-and-fall case against a grocery store. The store manager offers to testify favorably for Sam in exchange for a percentage of any settlement. Bob declines. Result: Bob was correct to refuse. While this offer didn't come from the lawyer, accepting it would still be unethical. Lawyers cannot be involved in compensating witnesses based on testimony content or case outcomes, even indirectly.
Hypo 2: Bob is representing Sam in a complex patent infringement case. He hires an expert in semiconductor technology, agreeing to pay $500 per hour for review and testimony, with a $5,000 bonus if Sam wins the case. Result: The hourly rate is likely fine, but the outcome-based bonus is improper. Expert fees cannot be contingent on the case result.
Hypo 3: Sam is suing his former employer for wrongful termination. Bob offers a former coworker $1,000 to testify on Sam's behalf, but only if the testimony is "helpful to our case." Result: This is clearly unethical. The payment is explicitly contingent on the content of the testimony, creating an improper incentive.
Hypo 4: Bob represents Sam in a slip-and-fall case against a grocery store. The store manager offers to testify favorably for Sam in exchange for a percentage of any settlement. Bob declines. Result: Bob was correct to refuse. While this offer didn't come from the lawyer, accepting it would still be unethical. Lawyers cannot be involved in compensating witnesses based on testimony content or case outcomes, even indirectly.
Visual Aids
Related Concepts
According to the Duty Not to Contact Represented Parties, which individuals within an organization must an attorney obtain permission from the organization's lawyer before contacting directly?
How do the rules in California differ regarding how a lawyer balances their Duty of Candor with their criminal defendant client's right to testify if they believe the client intends to lie?
How must a lawyer balance their Duty of Candor with their criminal defendant client's right to testify if they believe they intend to lie?
In California, can an attorney disclose information to set the record straight if one of their witnesses intends to lie?
What are the 9 Affirmative Duties of a Public Prosecutor?
What is an ex parte proceeding, and how does it affect what a lawyer must disclose?
What is the Duty Not to Contact Represented Parties?
What is the Duty of Candor?
What is the Duty to Produce Evidence?
What must a lawyer do if they know that their witness intends to lie in their testimony?
