Paying Witnesses’ Legal Fees

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Rule of Professional Conduct 3.4(b) states that it is improper to “offer an inducement to a witness that is prohibited by law.” Comment 3 to the rule states that “[t]he common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying,” though “it is not improper to pay a witness’s expenses.” (Of course, the rules for expert witnesses are quite different.)

An interesting article in yesterday’s BNA Criminal Law Reporter (available here if you have a subscription) asks whether paying a witness’s legal fees in connection with a pretrial interview is permitted. For example, suppose that Dan Defendant is a mortgage broker charged with mortgage fraud. He wants to interview Wanda Witness, a former co-worker who is expected to testify for the prosecution. Wanda is concerned about her own potential liability but wants to be transparent, so she agrees to be interviewed on the condition that Dan pay for her lawyer to attend the interview. May Dan do so?

The question is not an easy one. There is authority for the proposition that “free legal service[s]” may be an inducement. Biocore Medical Technologies, Inc. v. Khosrowshahi, 181 F.R.D. 660 (D. Kan. 1998). But Wanda does not have an independent desire for the free legal services in question; she needs them only in connection with the interview Dan requested.

The authors of the article argue that Dan may pay Wanda’s legal fees, relying in part on South Carolina Bar Ethics Advisory Opinion 08-05. That opinion concludes that, so long as it is clear to Wanda that Dan is paying her expenses, and not trying to buy her testimony, and so long as Wanda’s lawyer remains devoted to Wanda’s interests even though Dan is paying for the lawyer’s time, the payment violates no ethics rules.

I’m not aware of a North Carolina ethics opinion on point, nor could I find any North Carolina case law on point. The South Carolina ethics opinion is pretty persuasive authority, but I’d still suggest contacting the ethics folks at the State Bar before relying on it.

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