Opinions of General Counsel, 0517 ALBJ, 78 The Alabama Lawyer 236 (2017)

• Author: J. Douglas McElvy, J.

OPINIONS OF THE GENERAL COUNSEL

Vol. 78 No. 3 Pg. 236

Alabama Bar Lawyer

May, 2017

J. Douglas McElvy, J.

An attorney may pay an expert witness a reasonable and customary fee for preparing and providing expert testimony, but the expert’s fee may not be contingent on the outcome of the proceeding.

QUESTION:

Under what circumstances may an attorney pay a witness who offers testimony at trial or by deposition for an attorney’s client?

ANSWER:

Witnesses who offer testimony at trial fall generally into two categories, expert witnesses and lay or fact witnesses. An attorney may pay an expert witness a reasonable and customary fee for preparing and providing expert testimony, but the expert’s fee may not be contingent on the outcome of the proceeding. An attorney may not pay a fact or lay witness anything of value in exchange for the testimony of the witness, but may reimburse the lay witness for actual expenses, including loss of time or income.

DISCUSSION:

The prohibitions against paying fact witnesses and against paying experts contingency fees are found in Rule 3.4(b) of the Rules of Professional Conduct of the Alabama State Bar, which provides that a lawyer shall not “offer an inducement to a witness that is prohibited by law.” However, the Comment to this rule recognizes that the prohibition does not preclude payment of a fact witness’s legitimate expenses as long as such payment does not constitute an inducement to testify in a certain way. This Comment is consistent with DR 7-109 of the old Model Code of Professional Responsibility which specifically authorized a lawyer to pay “expenses reasonably incurred by a witness in attending or testifying” and “reasonable compensation to a witness for his loss of time in attending or testifying.” Furthermore, payment to a fact witness for his actual expenses and loss of time would constitute “expenses of litigation” within the meaning of Rule 1.8(e). Sub-paragraph (1) of that section authorizes an attorney to “advance court costs and...