OBA Ethics Counsel
Ethics Opinion No. 252
Adopted November 9, 1967
This committee has been asked whether or not it would be unethical for an attorney to pay or arrange to have paid witnesses more than the daily rate which the statute provides plus mileage allowance.
Canon 39 provides:
"A lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party. In doing so, however, he should scrupulously avoid any suggestion calculated to induce the witness to suppress or deviate from the truth, or in any degree to affect his free and untrammeled conduct when appearing at the trial or on the witness stand."
The Canon itself makes no reference to payment of witness fees.
In Henry Drinker's "Legal Ethics" pages 75 and 76, Mr. Drinker says:
"A lawyer may not participate in a bargain with a witness as a condition of his giving evidence, but this does not preclude the payment of actual expenses and reasonable compensation to persons who cannot afford to come and testify at the statutory fees, with no attempt to influence their testimony, the arrangement being disclosed to the court and jury."
On page 86 of Mr. Drinker's book, he states:
"... A lawyer may not agree to pay a contingent fee to a witness, nor advertise for a witness to testify to stated fact; although he may advertise for witnesses to a particular event or transaction."
Mr. Drinker on page 152 of his book states:
"A lawyer may not advertise for witnesses to testify to stated facts although he may advertise as to witnesses of a particular event or transaction. A lawyer may not offer a contingent fee to a witness, but may pay a witness for waiving his privilege not to testify, notice being given to the court, jury, and counsel, and may pay transportation expenses to an out-of-town witness without advising counsel and the court."
This committee agrees with the statement of Mr. Drinker in his book and takes the position that it is not unethical to pay a lay witness his wages or compensate him for loss of time from his business plus reasonable transportation charges to testify. The committee, however, feels that the amount of compensation paid to a witness by reason of his attendance at court or for the purpose of taking a deposition must be a simple reimbursing for any loss the witness would incur on an average daily basis resulting from loss of compensation which he otherwise would have earned and actual reasonable transportation expenses to and from the court or place of taking the deposition and a payment of any more than this would be regarded by this committee as "payment to testify" as distinguished from "reimbursement of loss." The committee also holds that if the witness is paid his statutory fees and transportation, then in that event, he may be paid only the difference between his actual out of pocket financial loss and the statutory fees which he has collected. A person who incurs no financial loss as a result of being called as a witness may not be compensated since this would amount to "payment to testify."
This committee holds that fees for expert witnesses are questions of fact and law and are not a matter of ethics, except to the extent that we have pointed out in this opinion. It might also be pointed out that the question of adequate compensation to a witness, both lay and expert, could be not only a matter of ethics but also a matter of law, dependent upon the facts and circumstances.
Since we, under our rules, cannot render opinions on questions of law, we refer you to C.J.S. Witnesses, Section 35, et seq., and Compensation of Witnesses in West's various state digests Key No. 24, et seq.; also 58 American Jurisprudence Section 874-884, and an annotation appearing in 77 A.L.R.2d page 1184-1211, which discusses the question of compensation of witnesses in detail.