Can a lawyer pay a fact witness, including one who happens to be an attorney, more than the statutory subpoena fee for the time spent testifying?
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This page answers the general question as of 1997. Ezel answers yours: whether it's allowed on your facts, under the current South Carolina Rules of Professional Conduct, with citations.
Plain-English summary
After a divorced couple litigated the validity of a separation agreement, the husband subpoenaed three independent attorneys who had advised the wife, to establish as a fact that she had the benefit of independent counsel before signing property settlement agreements. They appeared as fact witnesses, not experts. Each then billed the husband for the time spent at the hearing, and the reasonableness of the fees was not disputed. The inquiry asked whether a fact witness may be paid more than the fee set by Rule 45(b)(1) of the South Carolina Rules of Civil Procedure, whether it matters that the witness is an attorney, and whether the court must be notified of any payment.
The committee noted it does not opine on matters of law or statutory interpretation but does guide practitioners on ethical propriety. It had considered essentially the same question in Opinion 93-36, as had the ABA in Formal Opinion 96-402; the gist of both is that so long as the payment is legally permissible, there is no inherent violation of Rule 407 (SCACR) or the ABA Model Rules. Assuming such a payment is lawful, the committee quoted the ABA opinion: as long as it is made clear to the witness that the payment is not for the substance or efficacy of the testimony, but solely to compensate the witness for time lost to testify in litigation in which the witness is not a party, the payments do not violate the Model Rules.
On the second question, the committee concluded that the witness's profession had no bearing on the answer in this case. It declined to answer the third question (notifying the court of the payment), finding it presented no question of ethical behavior, and reaffirmed Opinion 93-36 in light of the later ABA opinion.
Currency note
This opinion was issued in 1997, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a lawyer pay a fact witness more than the statutory subpoena fee?
A: To the extent it is legally permissible, the committee found no ethical prohibition, provided the payment compensates the witness for time lost to testify and not for the substance or efficacy of the testimony.
Q: Does it matter that the fact witness is an attorney?
A: The committee concluded the witness's profession had no bearing on the answer in this case.
Q: Must the court be told that a witness fee was paid?
A: The committee declined to answer, finding the question presented no issue of ethical behavior; it noted it does not opine on matters of law.
Background and rules framework
The committee analyzed witness compensation under Rule 407 (SCACR), the South Carolina Rules of Professional Conduct, corresponding to Model Rule 3.4 on fairness to opposing party and counsel, and relied on its prior Opinion 93-36 and ABA Formal Opinion 96-402. It treated the lawfulness of a payment above the Rule 45 subpoena fee as a question of law outside its purview.
Citations and references
Rules of Professional Conduct:
- Rule 407, SCACR (South Carolina Rules of Professional Conduct) / Model Rule 3.4: fairness to opposing party and counsel; witness compensation.
Statutes and rules:
- Rule 45(b)(1), S.C. Rules of Civil Procedure: statutory witness fee for a subpoena.
Other opinions cited:
- S.C. Bar Ethics Op. 93-36: payment of witness fees permissible if legally permissible.
- ABA Formal Opinion 96-402 (1996): paying a witness for time lost does not violate the Model Rules if not tied to the testimony's substance.
See also
Source
- Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-97-42/
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 97-42
Husband and Wife have divorced and are now involved in a subsequent proceeding to determine the validity of a separation agreement, the terms of which have been challenged by Wife.
Husband subpoenaed three unrelated, independent attorneys to prove the fact that Wife had the benefit of independent legal counsel before entering into various property settlement agreements during the course of the marital relationship. These attorneys were therefore fact witnesses, not expert witnesses.
After the hearing, each of Wife's three former attorneys submitted bills to Husband for their time in appearing at the hearing. The reasonableness of these fees is not disputed.
QUESTION:
- Is it permissible to pay a fact witness a fee in excess of the fee specified in Rule 45(b)(1) of the South Carolina Rules of Civil Procedure?
- Is the fact that the witness is an attorney relevant to the answer to Question 1?
- If it is permissible to pay such a fee to a witness, should the court be notified that a fee has been paid and the amount so paid?
SUMMARY:
This Committee does not render opinions on matters of law or statutory interpretation. It does, however, undertake to guide practitioners in matters of ethical propriety. To the extent that payment of witness fees may be legally permissible, there would appear to be no ethical prohibition upon such payment being made under the facts presented.
OPINION:
This Committee has considered essentially the same question in Ethics Advisory Opinion 93-36, as has the American Bar Association (ABA) in its Formal Opinion 96-402.
The gist of these two opinions is that so long as the payment ?. . . is legally permissible . . .? (S.C. Ethics Advisory Opinion 93-36) and ?. . . does not violate the law of the jurisdiction[.]? (ABA Opinion 96-402), there is no inherent violation of Rule 407 of the South Carolina Appellate Court Rules or of the ABA Model Rules of Professional Conduct.
Assuming for the purpose of this discussion that a payment to a witness beyond that required to effect a subpoena under Rule 45 (S.C. Rules Civ. Proc.) is not unlawful, the language of the ABA opinion is instructive:
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 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 [ABA] Committee is of the view that such payments do not violate the Model Rules.
As for Question 2, this Committee is of the opinion that the profession of the witness has no bearing on the answer to the underlying question, in this particular case.
This Committee declines to answer Question 3, as no question of ethical behavior is presented.
This Committee takes this opportunity to reaffirm its Opinion 93-36, especially in light of the subsequent ABA opinion (issued in 1996).
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