Can a lawyer in a civil case pay a fact witness the expense money another lawyer promised her for testifying in an earlier, concluded criminal case?

Plain-English summary

The inquiry involved a fact witness, a sole proprietor with no employees, who was subpoenaed and lost business time testifying in a criminal case. Attorney A, who represented the client in that criminal matter, promised to compensate the witness for her expenses but never did. The criminal case resolved in the client's favor. Later, Attorney B represented the same client in a civil action arising from the same operative facts, where the witness's testimony was again important, and the client wanted Attorney B to pay the witness the compensation Attorney A had promised for the earlier criminal trial.

The committee concluded that paying the witness for her prior criminal-trial testimony is improper. Rule 1.8(e) bars a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation, with a limited exception allowing the advance of court costs and litigation expenses, repayment of which may be contingent on the outcome. The committee reasoned that, although the criminal and civil cases are intertwined, they are separate and distinct, and the criminal case is concluded; paying for testimony in concluded litigation is the payment of an antecedent debt unrelated to the present case, which the rule does not permit.

The committee distinguished what is allowed: nothing in the rule prevents Attorney B from compensating the witness for her loss of time in the present civil litigation, provided the compensation is reasonable and not calculated to influence her testimony. Citing ABA Formal Opinion 96-402, the committee noted that payments made solely to compensate a non-party witness for time lost giving testimony, made clear not to be for the substance or efficacy of the testimony, do not violate the rules.

In practice

The committee concluded that, under the South Carolina rule as it stood at the time of the opinion, a lawyer may not pay a witness for testimony given in a concluded prior case (an antecedent debt under Rule 1.8(e)), but may reasonably compensate a non-party witness for time lost in the present litigation so long as the payment is not tied to the substance or outcome of the testimony. The line the committee drew is between compensating present lost time (permitted) and discharging a past, unrelated obligation for prior testimony (not permitted).

Common questions

Q: Can a lawyer pay a witness what a previous lawyer promised her for testifying in an earlier, concluded case?

A: No. The committee concluded that is the payment of an antecedent debt unrelated to the present litigation and is improper under Rule 1.8(e).

Q: Can the lawyer pay the witness anything?

A: Yes, within limits. The committee concluded the lawyer may reasonably compensate the witness for time lost in the present litigation, provided the payment is not calculated to influence her testimony.

Q: Why does it matter that the criminal case was over?

A: The committee reasoned Rule 1.8(e) allows advancing expenses only for pending or contemplated litigation; the concluded criminal case is a separate, distinct matter, so paying for that testimony is an antecedent debt the rule does not permit.

Background and rules framework

The opinion interprets South Carolina RPC 1.8(e) and 1.8(e)(1) (financial assistance to a client in connection with litigation, and the exception for advancing court costs and litigation expenses), which correspond to Model Rule 1.8(e). The committee relied on ABA Formal Opinion 96-402 on payments to occurrence witnesses for time lost.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.8(e), 1.8(e)(1) / Model Rule 1.8(e): no financial assistance to a client in connection with litigation, except advancing court costs and litigation expenses.

Other opinions cited:

• ABA Formal Op. 96-402 (payments to occurrence witnesses for time lost giving testimony).

See also

• ABA Formal Op. 96-402: Payments to occurrence witnesses
• Okla. Bar Ethics Op. 326: Public defender's gifts to an indigent client

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-02-10/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 02-10

Attorney A represents Client in a criminal matter during which Attorney A promises to compensate Fact Witness for expenses incurred as a result of being subpoenaed for trial. Fact Witness is the sole proprietor of a small business and has no employees to run the business in her absence. The criminal matter is ultimately resolved in Client's favor. Attorney A never compensates Fact Witness as promised.

Subsequently, Attorney B represents Client in a civil action arising out of the same set of operative facts as the criminal matter. Fact Witness's testimony is important to Client's success in the civil action. Client wants Attorney B to compensate Fact Witness for her time expended in the previous criminal trial.

Question:
Is it ethically permissible for Attorney B to pay Fact Witness the compensation promised by Attorney A in the previous criminal case?

Summary:
Under the facts presented, compensating Fact Witness for her prior testimony in the underlying criminal trial constitutes the payment of an antecedent debt that is unrelated to the present litigation, which is improper under the South Carolina Rules of Professional Conduct.

Opinion:
Under Rule 1.8(e) of the South Carolina Rules of Professional Conduct, a lawyer "shall not provide financial assistance to a client in connection with pending or contemplated litigation." Rule 1.8(e), S.C. App. R. 407. A limited exception to this general rule allows an a lawyer to "advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter . . . ." Rule 1.8(e)(1). Nevertheless, under the facts presented, compensating Fact Witness for her prior testimony in the underlying criminal trial constitutes the payment of an antecedent debt that is unrelated to the present litigation.

The text of Rule 1.8(e) plainly states that expenses of litigation may be advanced for "pending or contemplated litigation." Rule 1.8(e). The payment of expenses for concluded litigation is not permissible under the rule. Although the criminal and civil trials in this inquiry are intertwined, they are separate and distinct cases. Therefore, to compensate Fact Witness for her testimony in the concluded criminal trial would constitute the payment of an antecedent debt unrelated to the present litigation.
Nothing in this Rule, however, prohibits Attorney B from compensating Fact Witness for her loss of time in the present litigation provided that the compensation is reasonable and not calculated to influence her testimony. See ABA Formal Op. #96-402 (stating that "so 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". Nevertheless, payment of an antecedent debt unrelated to the present litigation, such as in this case, is improper under the South Carolina Rules of Professional Conduct.