So, before offering up the actual ethics content, if like me you know you’re not quite hitting on all cylinders but you are functional and you haven’t already read that New York Times article that made the rounds about “languishing.” I’d recommend it. You can still get to the article at this link. You might read through it and walk away very much saying “It Me.” If so, samesies. Unfortunately, I haven’t yet figured out yet what the recipe is for moving on from languishing to something more like – if not thriving then … well something.
Now, on to something with an actual clear solution, the answer to an ethics question. More specifically, I wanted to give a nod to a recent ethics opinion put out into the world that actually is a really good one. Really good in that it does the kind of thing that an ethics opinion can do to be really valuable — gives the correct answer to a practical question that can really matter to a lawyer and involving a situation that (while it doesn’t arise with abundant frequency) can still arise more frequently than once in a blue moon.
What we are discussing is Opinion #224 issued by the Professional Ethics Commission of the Board of Overseers of the Bar, State of Maine. But henceforth we’re just going to call it Maine Op. 224. Maine Op. 224 answers the question:
Can a lawyer pay a non-expert witness for time spent testifying at a deposition or a trial, preparing for such testimony, and other related costs?
Now, I know from experience dealing with lawyers that, when posed this sort of issue in real life, many lawyers immediate, visceral reaction is that surely this must be verboten. If they are able to draw a rule to mind to give shape to their reaction, they will point to RPC 3.4 and its prohibition on a lawyer offering inducements to witnesses that are prohibited by law.
In Tennessee, we’ve written our rules to be exceedingly clear about how this can be done rather than rely only on the ABA Model Rule language. Our RPC 3.4(h) has this additional language:
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 that witness’s loss of time in attending or testifying; or
(3) a reasonable fee for the professional services of an expert witness.
But such compensation is not verboten even in jurisdictions that just have Model Rule language. As long as the amounts provided as compensation are reasonable with respect to the value of the witness’s time and the compensation is not at all dependent on the content of the testimony, then the answer is that a lawyer may do this.
And Maine Op. 224 gets that right.
A lawyer may advance court costs and litigation expenses without running afoul of the Maine Rules of Professional Conduct, including paying a non–expert witness’s lost wages, expenses, and other costs related to preparing and providing testimony or otherwise assisting counsel, so long as the payment is reasonable and not conditioned on the content of the witness’s testimony.
Moreover, Maine Op. 224 provides a number of helpful points of elaboration. It manages to stress that the fundamental reason that the lawyer can do so is because the client has the right to do so and, thus, a lawyer can, acting on behalf of the client, advance those litigation expenses similar to other litigation expenses. It also, albeit in a footnote, gives practical guidance that the lawyer also has to be very careful about the likely need for the arrangement to be fully disclosed during discovery in the litigation itself. It also, again in a footnote, acknowledges that there could well be disputes over whether a particular amount of compensation is, in fact, reasonable and opines that the place for litigating such a question should be in the litigation itself.
Now, we are heaping a bit of praise on Maine for getting it right, but reaching the right conclusion on this question is not a Herculean task as the ABA, almost a full 25 years ago now, already gave this similar correct guidance in ABA Formal Op. 96-402 and Maine Op. 224 cribs from that opinion liberally.
What Maine Op. 224 does not do is go beyond the guidance the ABA Opinion offered about how to figure out whether requested compensation for a fact witness is reasonable. One good place to look for such guidance is in Chapter 5 of the Second Edition of Professional Responsibility in Litigation where Doug Richmond, Mike Matula, and I offer eight practical tips to litigators when addressing this issue. Respecting the adages of cows and free milk, I’ll offer you only three of those practical tips here: (a) lawyers ought to wait for a witness to ask for compensation rather than offering it; (b) the closer the lawyer can come to providing an amount that approximates the witness’s direct loss of income the safe the arrangement; and (c) lawyers should refrain from ever providing such compensation to someone who is a former employee of the litigation adversary.
Oh, and by the way, speaking of Professional Responsibility in Litigation, the Third Edition is going to be coming out very, very soon. So, stay tuned.