Must a lawyer who subpoenaed a physician as an expert witness pay the expert's fee if he didn't tell the expert beforehand that the fee was the client's responsibility?

Plain-English summary

A lawyer subpoenaed a physician to give expert testimony in a plaintiff's personal-injury case, serving the subpoena with the standard statutory mileage and per diem fee. Before trial the lawyer had told the client that trial expenses, including expert witness fees, would be the client's obligation, but he apparently did not tell the physician this until after the physician had testified. After a defense verdict, the physician asked the lawyer to pay his expert witness fee, and the lawyer asked the committee about his professional responsibility.

The committee emphasized that any question of express or implied contract was beyond its jurisdiction, and it assumed there was no local custom or inter-professional code under which the physician should have understood he was to look solely to the client. On the ethical question, it noted section 92.231, Florida Statutes, which allows an expert or skilled witness who has testified a court-assessed witness fee taxed as costs. Because the physician was entitled to rely on the statute, appeared, and testified, and because the lawyer made no disclaimer before the testimony, the committee concluded it would be unprofessional for the lawyer to decline to advance such reasonable fee as the court might assess. It observed that, while costs are ordinarily taxed only to a successful party, this statute was not limited to experts testifying for the prevailing party.

Currency note

This opinion was originally issued in 1968 and revised in 1993, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It analyzed the lawyer's obligation under section 92.231, Florida Statutes, as then in effect. Treat this page as historical context, not current guidance. Verify against the current rules and the current statute before relying on any specific requirement mentioned here.

Common questions

Q: Did the lawyer have to pay the expert's fee himself?

A: The committee concluded he should advance the reasonable fee the court assessed, given that he had subpoenaed the physician, the physician relied on the statute and testified, and the lawyer made no disclaimer before the testimony.

Q: Did it matter that the client lost the case?

A: No. The committee noted that, although costs are ordinarily taxed only to a successful party, section 92.231 was not limited to experts who testified for the prevailing party.

Q: Did the committee resolve whether a contract existed?

A: No. It said that any question of express or implied contract was beyond its jurisdiction and that it dealt solely with the ethical aspect.

Background and rules framework

The opinion turned on section 92.231, Florida Statutes, which at the time allowed an expert or skilled witness who had testified a witness fee of $10 per hour or such amount as the trial judge deemed reasonable, taxed as costs. The committee treated the lawyer's failure to disclaim responsibility before the testimony, combined with the physician's reliance on the statute, as making it unprofessional to refuse to advance the court-assessed fee.

Citations and references

Statutes:

• Section 92.231, Florida Statutes (expert or skilled witness fees, taxed as costs).

Other references:

• Annotation, 15 A.L.R.3d 531 (divided views on responsibility for expert witness fees).

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-67-44/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-67-44.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 67-44
Originally issued January 8, 1968
Revised April 23, 1993
Advisory ethics opinions are not binding.
A member of The Florida Bar who subpoenaed a physician to offer expert testimony in a personal injury case and who did not advise the physician until subsequent to his testimony that he considered the expert witness fee to be an obligation of his client should advance such reasonable witness fee as may be assessed by the court.
Statute: F.S. § 92.231
In the course of the presentation of a plaintiff's personal injury case, a member of The Florida Bar subpoenaed a physician to offer expert testimony, such subpoena being accompanied by the standard mileage and per diem fee as prescribed in the Florida Statutes. Before trial, counsel had advised the plaintiff that the expenses of the trial, including expert witness fees, would be entirely his obligation. Although no agreement was made by the attorney to compensate the physician for his expert witness fee, apparently the attorney did not advise the physician until subsequent to his testimony that he considered the expense an obligation of the client. Following the rendition of a verdict for the defendant, the physician has requested that his compensation as an expert witness be paid by the attorney. We are requested to advise the lawyer concerning his professional responsibility with reference to this request.
We emphasize at the outset that to the extent this inquiry involves the law of express or implied contracts it is one beyond our jurisdiction. A comprehensive annotation setting forth cases expressing divided views on the subject is found in 15 ALR 3rd 531.
We deal solely with the ethical aspect of the matter. We further assume at the outset that there is no custom in the community or county involved wherein it was or should have been understood by the physician that he was to look solely to the client, and further that there is no inter-professional code between the county bar association and the county medical society, which in effect would be a written embodiment of the custom governing attorneys and physicians in such circumstances.
With these assumptions, we note the provisions of Section 92.231, Florida Statutes, provide in part as follows:
(2) Any expert or skilled witness who shall have testified in any cause shall be allowed a witness fee including the cost of any exhibits used by such witness in the amount of $10 per hour or such amount as the trial judge may deem reasonable, and the same shall be taxed as costs.
In view of the fact that the physician who was entitled to rely upon this statute appeared and offered expert testimony, and in the absence of a disclaimer by the attorney prior to the testimony, we think that it would be unprofessional for the lawyer to decline under these particular circumstances to advance such reasonable fee as may be assessed by the court. It is to be noted that while ordinarily costs are taxed only to a successful party, the statute in question is not limited to experts testifying for the successful party.