Focus on Ethics & Civility

• Publication year: 2015
• Pages: 40
• Citation: Vol. 28 No. 6 Pg. 40

Focus on Ethics & Civility Vol. 28 No. 6 Pg. 40 Utah Bar Journal December, 2015

November, 2015

Is it Okay to Pay Fact Witnesses?

Keith A. Call, J.

One of my mothers (I claim two of them) is a proud United States Marine and veteran of WWII. Because women were not allowed to be combat Marines, she was assigned to an office job in Washington, D.C. under a 1940s’ slogan, “Be a Marine, Free a Marine to Fight.”

In addition to being part of the Greatest Generation, she is also a child of the Great Depression. She wastes nothing, lives almost richly on social security, and would consider an $18 witness fee to represent a sinfully extravagant lunch. To her, the thought of paying a witness anything more might conjure up thoughts of bribery.

To the modern witness, however, an $18 dollar witness fee and a day off work could present an extreme financial hardship, or at least an inconvenience. Do the ethical rules allow you to pay fact witnesses more than the standard $18 witness fee? When would such compensation be unlawful bribery? These questions arise in varying contexts, the most common being a situation where a critical fact witness is a former employee of a corporate litigant. Should such a witness be expected to spend numerous hours assisting with the case without remuneration?

The Rule

The governing rule is 3.4(b) of the Utah Rules of Professional Conduct. It says, “A lawyer shall not…offer an inducement to a witness that is prohibited by law.” Utah R. Prof’l Conduct 3.4(b). Comment [3] adds this guidance: “[I]t is not improper to pay a witness’s expenses or to compensate an expert witness on terms permitted by law.” Id. R. 3.4, cmt. [3].

Interpretation and Application

Utah cases addressing this issue are sparse or non-existent. The Utah Court of Appeals has ruled that payments over and above the standard witness fee are not recoverable as “costs.” Stevensen 3rd E., LC v. Watts, 2009 UT App 137, ¶¶ 63–64, 210 P.3d 977. Beyond this (at least to this author’s knowledge), no other Utah Court has touched upon the ethics of compensating fact witnesses.

Utah’s Rule 3.4 is identical to the ABA’s Model Rule. Comment [3] to the Model Rule includes a sentence that was omitted from Comment [3] to Utah’s version of the Rule: “The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying….” ABA Model R. of Prof’l Conduct 3.4, cmt. [3]. The omission of this sentence from Utah’s rule...