Ethics Corner Article
Dear Ethics Committee:
I have heard that a lawyer can pay a witness for reasonable expenses, but where is the line between expenses and paying a witness for testimony? How do I determine what is acceptable and what compensation is prohibited?
You are right to be cautious. New Hampshire Rule of Professional Conduct 3.4(b) states that a “lawyer shall not … offer an inducement to a witness that is prohibited by law.” In New Hampshire, there is very little statutory guidance on what is prohibited by law in this context. For example, until 2019, NH RSA § 516:16 set witness fees for other than law enforcement witnesses at $12.00 per half day, and mileage was reimbursed at the rate of $0.17 per mile. While that statute has been repealed, criminal statutes regarding witness tampering still apply. Specifically, NH RSA § 641:5 prohibits anyone from attempting “to induce or cause another person to testify or inform falsely.” Fortunately, there is more detailed guidance on permissible witness compensation from the American Bar Association as well as other commentators.
The American Bar Association comment to the Model Rule 3.4(b) states, “it is not improper to pay a witness’s expenses” and goes on to note that “[t]he common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying”. Thus, witnesses can be paid for their expenses, but not for their testimony. This distinction raises the question of which category payment for time spent testifying or preparing to testify should be placed.
While the comments to the Model Rule may appear to be confusing at first glance, they can be reconciled, and this question can be answered. The general rule is that you cannot pay a witness for the content of their testimony. Thus, payment made to a fact witness for time spent preparing to testify and testifying can be categorized as an “expense.” The American Bar Association Committee on Ethics and Personal Responsibility has opined that a lawyer, on behalf of the client, “may compensate a non-expert witness for time spent in attending a deposition or trial or in meeting with the lawyer preparatory to such testimony, provided that the payment is not conditioned on the content of the testimony and provided further that the payment does not violate the law of the jurisdiction.” ABA Comm. on Ethics and Professional Responsibility, Formal Op. 96–402 at 1 (Aug. 2, 1996). The opinion explains that the lawyer must be clear regarding the nature of the payment. “As long as it is made clear to the witness that the payment is not being made for the substance or efficacy of the witness’s testimony and is being made solely for the purpose of compensating the witness for the time the witness has lost in order to give testimony in litigation in which the witness is not a party, the Committee is of the view that such payments do not violate the Model Rules.” Id. at 2. Of course, it is unethical to make a witness’s payment contingent on the outcome of the case. Restatement (Third) of the Law Governing Lawyers, § 117. See also, Reimbursement of Litigation Consultant’s Attorney’s Fees, New Hampshire Ethics Committee Advisory Opinion 1992-93/10 (A lawyer may reimburse the out-of-pocket costs of a fact witness or an expert witness, provided those costs are reasonably related to the litigation.). The Maine Bar has recently addressed this subject and has issued an opinion consistent with ABA Formal Opinion 96-402. See, Payment to Non-Expert Witness as a Litigation Expense, Maine Board of Overseers of the Bar, Opinion #224, April 15, 2021.
In conclusion, if you are considering paying a fact witness, you should be clear with the witness, preferably in writing, that the payment is not for the content of the testimony. Reasonable compensation for the time and expenses related to the preparation for testimony and actual testimony itself is the only appropriate payment a lawyer can make.
For a comprehensive analysis of this issue, one should review, Compensating Fact Witnesses: The Price Is Sometimes Right, 42 Hofstra L. Rev. 905 (Spring, 2014). In addition, the New Hampshire Bar Association Ethics Committee addressed this issue in a “Practical Ethics” Article in 1992. This Ethics Corner is consistent with the analysis in that article. See Compensation of Fact Witnesses: Rule 3.4(b) of the N.H. Rules of Professional Conduct, N.H. Bar Ass’n Ethics Comm. (Oct. 18, 1992).
This Ethics Corner Article was submitted for publication to the NHBA Board of Governors at its November 18, 2021 Meeting. The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the Bar News and other NHBA media outlets. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing the Ethics Committee Staff Liaison.