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WSBA 1989

May a lawyer pay an expert witness a contingent fee?

Short answer: The committee said RPC 3.4(b) governs, barring inducements to a witness that are prohibited by law, but whether a contingent fee is prohibited by law is a legal question the committee could not answer.

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This page answers the general question as of 1989. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 1989
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

The inquiry concerned paying a contingent fee to an expert witness. The committee analyzed the question under RPC 3.4(b), Washington's rule on fairness to opposing party and counsel.

The committee was of the opinion that the question is governed by RPC 3.4(b), which provides that a lawyer shall not offer an inducement to a witness that is prohibited by law. It added that whether a contingent fee is prohibited by law is a legal question the committee could not answer, leaving that determination outside its advisory role.

Currency note

This opinion was issued in 1989, before the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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: Which rule governs a contingent fee to an expert witness?

A: RPC 3.4(b), which bars a lawyer from offering a witness an inducement that is prohibited by law.

Q: Did the committee say a contingent expert fee is allowed?

A: No. It said whether a contingent fee is prohibited by law is a legal question it could not answer, so it did not resolve the permissibility of the arrangement.

Background and rules framework

RPC 3.4(b), Washington's counterpart to ABA Model Rule 3.4, addresses fairness to the opposing party and counsel and prohibits offering a witness an inducement prohibited by law. The committee identified that rule as the governing provision but declined to decide the embedded legal question of whether a contingent expert fee is prohibited by law.

Citations and references

Rules of Professional Conduct:

  • ABA Model Rule 3.4 (fairness to opposing party and counsel)
  • Washington RPC 3.4(b)

See also

Source

Original opinion text

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

The Committee considered your inquiry concerning the payment of a contingent fee to an expert witness. The Committee was of the opinion that the question is governed by RPC 3.4(b) which provides that a lawyer shall not offer an inducement to a witness that is prohibited by law. Whether a contingent fee is prohibited by law is a legal question which the Committee cannot answer.

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