1.126 - D. Duties Regarding Witnesses

• Jurisdiction: New York

D. Duties Regarding Witnesses

L may not advise or cause a witness to hide or leave the jurisdiction so as to make herself unavailable as a witness.⁸³⁷

L is forbidden from making payment to any witness contingent on the content of the witness’s testimony or outcome of the case.⁸³⁸ But L may pay lay witnesses for out-of-pocket expenses and for the value of the lay witnesses’ time spent in attending, testifying, preparing to testify or otherwise assisting counsel.⁸³⁹And L may in general pay for physical evidence in connection with contemplated or pending litigation, and such payment may be contingent on the outcome of the matter, but there are limitations, such as when the transaction involved witness payments or the prospect of false evidence.⁸⁴⁰

Payment to lay witnesses for their time and expenses must be net of the payment of the subpoena witness fee(s). The compensation for lay witnesses for time spent is the wage rate for the witness who is employed or the value of recreational time for witnesses who are not employed.⁸⁴¹ Where attorneys act as fact witnesses, it is permissible to pay attorneys at their customary hourly fee for the time spent.⁸⁴²

With regard to expert witnesses, L may pay the expert witness reasonable fees for her professional services, but no contingent fee is permitted to an expert witness.⁸⁴³ The fee is not contingent, however, if the amount of the fee is, on the face of the agreement, fixed. Uncertainty as to collectability of the fee if the client loses does not make the fee contingent.⁸⁴⁴ A retainer agreement with an expert that says the fee will be whatever the court awards likewise is not a contingent fee.⁸⁴⁵ Advances of funds to witnesses are permitted, but must be accounted for at the conclusion, and the expenses must be reasonable.

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Notes:

^[837] . Rule 3.4(a)(2).

^[838] . Rule 3.4(b).

^[839] . Rule 3.4(b)(1) and (2).

^[840] . NYSBA Op. 997 (2014) (question involved L’s offer to third party to pay for copy of store surveillance tape).

^[841] . NYSBA Op. 714 (1999). See also NYSBA Op. 952 (2013) (L may arrange for C’s payment of reasonable travel expenses and legal fees of a witness if such payment is not prohibited by law and is not contingent on the witness’s testimony or the outcome of the case. C was the proponent of a will who sought testimony of a witness to authenticate the will. Witness lived within the state but several hours from the court. In addition, the witness requested that her counsel attend her testimony).

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