Can a criminal defendant's firm pay the legal fees of a separately represented government witness for the witness's lawyer to attend a pretrial interview?

Plain-English summary

Lawyer A represents a criminal defendant accused of fraud connected to his former employment with a company that is cooperating with law enforcement. Witness B, another former employee with information about material facts, is expected to testify for the government and has his own lawyer, Lawyer B. The company previously paid for Lawyer B to represent the witness during a law-enforcement interview. When Lawyer A sought to interview the witness with his investigator, Lawyer B said the witness was reluctant to be interviewed without counsel and unwilling to pay Lawyer B for it, and the company refused to pay. Lawyer A considered advising the defendant to pay Lawyer B's reasonable fees and expenses for the interview, paid from Lawyer A's trust account to Lawyer B's trust account solely to provide the witness legal advice for the interview, and was unaware of any law prohibiting it. The question was whether one firm may advance or pay the fees of another firm representing a witness for a pretrial interview where the witness is expected to be a government witness.

The committee concluded that, to the extent such payment is legally permissible, there appears to be no ethical prohibition on the facts presented, provided Rules 1.8(e), 1.8(f), and 3.4(b) are followed. It explained that Rule 1.8(e) allows advancing the expenses of litigation, and Rule 1.8(f) permits a lawyer to accept compensation for representing a client from a third party as long as the client consents, there is no interference with the lawyer's independent professional judgment or the client-lawyer relationship, and client information is protected as required by Rule 1.6. Rule 3.4(b) bars counseling or assisting a person to falsify evidence, assisting a witness to testify falsely, or offering an inducement to a witness that is prohibited by law, and Rule 45(b)(1) of the South Carolina Rules of Civil Procedure governs witness fee amounts; considering these, it is not improper to pay a witness's expenses or compensate an expert on terms permitted by law.

The committee cited ABA Formal Opinion 96-402, which found no ethical violation in paying witness fees so long as it is made clear the payment is not for the substance or efficacy of the testimony and is made solely to compensate the witness for time lost in giving testimony in litigation in which the witness is not a party. It concluded that, to the extent legally permissible, there appears to be no ethical prohibition on the payment under the facts presented if Rules 1.8(e), 1.8(f), and 3.4(b) are followed.

In practice

Under this opinion, a defendant's firm may pay or advance the fees of a separately represented government witness's lawyer for a pretrial interview when the law permits it and the relevant rules are honored. The committee held the payment must satisfy Rule 1.8(e) (advancing litigation expenses), Rule 1.8(f) (third-party payment with client consent, no interference with the witness-lawyer's independence, and Rule 1.6 confidentiality), and Rule 3.4(b) (no inducement to a witness prohibited by law). Drawing on ABA Formal Opinion 96-402, it framed permissible payment as compensation for the witness's lost time, not for the substance or efficacy of the testimony, and expressly conditioned its conclusion on the payment being legally permissible.

Common questions

Q: Can a defendant pay for a government witness's lawyer to attend a pretrial interview?

A: The committee concluded that, to the extent legally permissible, there appears to be no ethical prohibition on the facts presented, provided Rules 1.8(e), 1.8(f), and 3.4(b) are followed.

Q: What conditions does Rule 1.8(f) impose on third-party payment?

A: The committee said the witness must consent, the payment must not interfere with the witness-lawyer's independent professional judgment or the client-lawyer relationship, and the witness's information must be protected as Rule 1.6 requires.

Q: How does Rule 3.4(b) limit the payment?

A: The committee explained Rule 3.4(b) bars assisting a witness to testify falsely or offering an inducement prohibited by law; relying on ABA Formal Opinion 96-402, it framed proper payment as compensating the witness for lost time, not for the substance or efficacy of the testimony.

Background and rules framework

The opinion applies South Carolina Rule 1.8(e) (advancing litigation expenses), Rule 1.8(f) (compensation from a third party with consent, independence, and confidentiality), and Rule 3.4(b) (no improper inducement to a witness), which correspond to the like-numbered Model Rules, and references Rule 45(b)(1) of the South Carolina Rules of Civil Procedure on witness fees. It follows ABA Formal Opinion 96-402 on the line between compensating a witness's lost time and paying for testimony.

Citations and references

Rules of Professional Conduct:

• MR 1.8 / SC Rule 1.8(e) (advancing litigation expenses), Rule 1.8(f) (third-party payment; consent; independence; Rule 1.6 confidentiality)
• MR 3.4 / SC Rule 3.4(b) (no falsifying evidence; no inducement to a witness prohibited by law)

Rules of court:

• Rule 45(b)(1), South Carolina Rules of Civil Procedure (witness fee amounts)

Other opinions cited:

• ABA Formal Opinion 96-402 (paying a witness for time lost, not for the substance or efficacy of testimony)

See also

• SC Bar Ethics Op. 06-12: Lawyer Supervised by a Nonlawyer
• SC Bar Ethics Op. 04-03: Nonprofit-Paid Estate Work
• SC Bar Ethics Op. 08-02: Trade-Credit Fee Financing

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-08-05/
• Original PDF: https://www.scbar.org/media/nrsf0ylc/08-05.pdf

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 08-05

SC Rules of Professional Conduct: 1.8(e) and (f); 3.4(b)

SC Rules of Civil Procedure: Rule 45(b)(1)

Facts

Lawyer A represents Defendant in a pending criminal action in South Carolina. Defendant is a former employee of Company and is accused of fraud in connection with Defendant’s employment with Company. Company is cooperating with law enforcement in connection with the investigation. Witness B is also a former employee of Company who possesses information regarding material facts relating to the case. Witness B is also expected to testify at the trial at the request of the government.

Witness B requested and obtained counsel (Lawyer B) to represent Witness B in connection with the investigation. Witness B was interviewed by law enforcement officers. Company previously paid Lawyer A’s fees and expenses for representing Witness during the interview with law enforcement.

Lawyer A contacted Lawyer B to arrange for an interview with Lawyer A and Lawyer’s A’s investigator. Lawyer B advised Lawyer A that Witness B is reluctant to be interviewed without representation of counsel and that Witness is not willing to pay for Lawyer B to represent Witness during the interview. Lawyer A has requested that Company pay Lawyer B to represent Witness during the interview, and Company has refused.

Lawyer A is considering advising Defendant to pay Lawyer B’s reasonable fees and expenses for representing Witness B during the interview. Lawyer A would pay the fees and expenses from Lawyer A’s trust account directly to Lawyer B’s trust account solely for the purpose of providing Witness B’s legal advice in connection with the interview. Lawyer A is further unaware of any law which prohibits payment of Witness B’s lawyer under these circumstances.

Question

May one firm advance or pay the fees of another firm that represents a witness during an interview prior to a criminal trial in which the witness is expected to testify as a government witness?

Summary

To the extent that payment of witness fees for representing a client from another may be legally permissible, there would appear to be no ethical prohibition upon such payment being made under the facts presented provided the provisions of Rules 1.8(e), 1.8(f) and 3.4 (b) are followed.

Opinion

SC Rules of Professional ConductRule 1.8(e) allows for the advancement of expenses of litigation and Rule 1.8(f) provides that a lawyer may accept compensation for representing a client from another as long as: (1) the client consents; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the client is protected as required by Rule 1.6.

Rule3.4(b) states a lawyer shall not counsel or assist another person to falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law. Rule 45(b)(1) of the South Carolina Rules of Civil Procedure governs the amount of fees which are to be paid to witnesses. Considering all of these rules, it is not improper to pay a witness's expenses or to compensate an expert witness on terms permitted by law.

The American Bar Association (ABA) in its Formal Opinion 96-402 also considered an inquiry relating to the payment of witness fees. The ABA committee found that, as long as it is made clear to the witness that the payment is not being made for the substance or the efficacy of the witness’s testimony, and the payment 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, there was no violation of the ethical rules.

herefore, to the extent that payment of witness fees for representing a client from another may be legally permissible, there would appear to be no ethical prohibition upon such payment being made under the facts presented provided the provisions of Rules 1.8(e), 1.8(f) and 3.4 (b) are followed.