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OBA Ethics Counsel

Ethics Opinion No. 128

Adopted October 23, 1936

The Board is in receipt of the following inquiry:

"May a member of the State Bar who has accepted employment from a private individual client, with propriety, place upon the witness stand to testify a witness with whom the attorney has full knowledge the client has entered into a contract, the terms of which are that, for the attendance at court and such assistance as is rendered during the trial and for the testimony given, the witness is to be compensated on a contingent basis of a designated per cent of the amount of the recovery, if any? The client occupies the position of plaintiff in the case. The suit is one for alleged damages to property of the plaintiff. The contingent compensation to the witness does not cover investigation and preparation which the witness had theretofore made. On the other hand, the witness had made the investigation and preparation of the general territory covered under employment and with definite compensation from another party."

In response:

The inquirer must be answered in the negative.

In Advisory Opinion No. 69 (Vol. 1, Adv. Op. p. 131), a proposed arrangement whereby a client was to employ an expert witness on a contingent fee basis, the amount of the fee to be deducted from the amount of the contingent fee to be received by the member of the bar employed by the client was, for "obvious reasons," condemned.

In Advisory Opinion No. 103 (Vol. 1, Adv. Op. p. 178), a proposed arrangement whereby a member of the bar who had accepted employment upon a contingent fee basis, was to employ an accountant as an investigator and witness upon an agreed compensation contingent upon recovery, to come out of the contingent fee of the member of the bar was also condemned.

In the present inquiry the witness is to be paid upon a contingent basis, both as to recovery and amount, by the client himself. This does not change the principles involved.

In Advisory Opinion No. 103 (Vol. 1, Adv. Op. p. 178) it was said:

"The trial of a dispute in a court or before an administrative body ought to be an honest and earnest effort by members of the bar and all persons concerned, be they investigators or witnesses, to develop the whole truth and all the facts."

Paraphrasing the language of Advisory Opinion No. 108, (1 Adv. Op. p. 178), "It is unfortunate enough when, ex necessitate, a witness is an interested person; and certainly the practice of clients premeditatingly creating persons into interested witnesses by arrangements such as suggested in the inquiry is improper and is contrary to public policy. There may be persons who are of such strong moral stamina, high honor and self sacrificing spirit as to enable them to withstand even a subconscious temptation to flavor their testimony in their self interest, but the proper conception of a witness does not contemplate the voluntary placing of him in a position which would offer a possible temptation to the average man in his self interest, not to tell the truth, the whole truth and nothing but the truth. To acquiesce in the arrangement suggested would not be conducive to the proper administration of justice."

In answer to question number 110 the committee on Professional Ethics of the New York County Lawyers Association, said:

"The payment of a sum of money to a witness 'to tell the truth' is as clearly subversive of the proper administration of justice as to pay him to testify to what is not true."

While payment in excess of legal witness fees, under proper circumstances, may be made to expert witnesses the case presented is not such an one.

Rule 31 of the rules of professional conduct enjoins upon a member of the bar to improve, not only the law, but the administration of justice. A member of the bar who knowingly permits a person to testify under the circumstances detailed in the inquiry violates this rule.