Ethics & The Law: Is Pay Okay? - By Robert Pelton

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Tuesday, July 30th, 2019

QUESTION

I need a lay witness to testify. It’s too late for a subpoena. Is it unethical to compensate her for her time to appear?

The answer is in the ABA Model Rules of Professional Conduct, which were adopted by Texas on June 20, 1989, as Tex. Disciplinary Rule Prof. Conduct 3.04. ABA Model Rule 3.4(b) states that an attorney “shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.” The comments to this rule, and specifically Comment 3, provide that it is not improper to pay a witness’ expenses, but the common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying. This has been construed to mean that you can pay a fact-witness for expenses and time lost preparing to testify and to testify. This consideration is not the same as paying a “fee for testifying.” The comments provide that “there is no reason to draw a distinction between compensating a witness for time spent in actually attending a deposition or a trial and compensating him for time spent in pretrial interviews with the lawyer in preparation for testifying so long as the lawyer makes it clear to the witness that payment is not being made for the substance of the testimony or as an inducement to ‘tell the truth.’” But if you pay a witness and attach any conditions to the payment, such act may be considered as influencing testimony. So, you cannot pay a witness if it is conditioned on giving testimony in a certain way, to prevent attendance at trial, or contingent on the outcome of the case. The factors that you should consider are: (1) what is reasonable consideration for the witness’ time; and (2) whether the agreement is in writing (always do this).

Tex. Disciplinary Rule Prof. Conduct 3.04, Rule 3.04, Fairness in Adjudicatory, provides that a lawyer shall not: (a) unlawfully obstruct another party’s access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or pay, offer to pay, or acquiesce in the offer or payment of compensation to a witness or other entity contingent upon the content of the testimony of the witness or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of: (1) expenses reasonably incurred by a witness in attending or testifying; (2) reasonable compensation to a witness for his loss of time in attending or testifying; or (3) a reasonable fee for the professional services of an expert witness . . .

Use good judgment when paying fact-witnesses. If the fact-witness is a busy professional like a doctor, attorney, teacher, plumber, electrician, or any other person whose time lost equals livelihood lost, then figure out a reasonable fee to pay the fact-witness. But if the fact-witness is a retiree or a 15-year-old kid, that witness’ time lost will be worth a lot less. And if the fact-witness is some mooch who lives in his parent’s garage, basement, or never left the bedroom he grew up in and who smokes pot and plays video games all day, his time lost will be worth what’s in the center of a doughnut or close to it.

Two other considerations: paying a fact-witness opens up the door for cross-examination as to your witness’ motives for testifying. And, you must also consider Tex. Disciplinary Rule Prof. Conduct 3.03, Candor Toward the Tribunal.

—Michael Mowla

I don’t think anyone would disagree with the answer from Michael. I would emphasize the necessity of a written agreement when you pay any witness for his/her time and/or expertise.

—Jack Zimmermann

I don’t understand “too late for a subpoena” because it is easier than ever to serve one. I’m not sure how this issue arose. I agree on one thing: compensation for witnesses you can’t attribute to the court is a fair (and devastating) basis for impeachment of defense witnesses, one to be avoided, ironically, at all costs. If you can, preserve the issue, and you can do so in a variety of ways.

—Keith Hampton

Thanks to Michael Mowla, Jack Zimmermann, Joseph Connors, and Keith Hampton.