Can a lawyer pay a client's treating physician to testify at trial as a fact witness rather than an expert?

Plain-English summary

The inquirer asked whether it is ethical for a lawyer to pay for the trial testimony of a doctor who provided medical treatment to the lawyer's client, where the doctor would testify as a fact witness rather than as an expert.

The committee opined that it is not unethical to pay such a treating physician the reasonable expenses incurred in connection with testifying and the reasonable value of the witness's time in connection with testifying. It added two limits: a lawyer may not ethically pay a witness to induce particular testimony or make the payment contingent on the outcome of the litigation, and a lawyer may not pay a witness when doing so is prohibited by law. The committee pointed to RCW 9A.72.090 (bribing a witness) and RCW 9A.72.120 (tampering with a witness) as examples of conduct prohibited by law.

Currency note

This opinion was issued in 2000, before the Washington State Bar Association's adoption of the 2006 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 Treat this page as historical context, not current guidance.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 treating physician who testifies only about the care provided?

A: The committee concluded a lawyer may pay such a fact witness the reasonable expenses of testifying and the reasonable value of the witness's time in connection with testifying.

Q: What payments are off limits?

A: The committee said a lawyer may not pay a witness to induce particular testimony, may not make payment contingent on the outcome of the litigation, and may not pay where doing so is prohibited by law.

Q: What laws did the committee point to?

A: It cited RCW 9A.72.090 (bribing a witness) and RCW 9A.72.120 (tampering with a witness) as examples of conduct prohibited by law.

Background and rules framework

The opinion addresses payments to a fact witness, the subject of Washington RPC 3.4(b) (fairness to opposing party and counsel, corresponding to ABA Model Rule 3.4(b)), which bars offering an inducement to a witness that is prohibited by law. The committee framed permissible payment as reasonable expenses plus the reasonable value of the witness's time, and tied the prohibited end to Washington's witness-bribing and witness-tampering statutes.

Citations and references

Rules of Professional Conduct:

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

Statutes:

• RCW 9A.72.090 (bribing a witness)
• RCW 9A.72.120 (tampering with a witness)

See also

• ABA Formal Op. 96-402: Paying Fact Witnesses for Time
• CBA Formal Op. 103: Paying Fact Witnesses
• MA Bar Ethics Op. 91-3: Paying a Fact Witness for Their Time

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1102

Original opinion text

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

Advisory Opinion: 1908
Year Issued: 2000
RPC(s): RCW 3.4(b); RCW 9A.72.090; RCW 9A.72.120
Subject: Paying treating physician for trial testimony when doctor testifying as fact, not expert, witness

The inquirer asked if it is ethical for a lawyer to pay for the trial testimony of a doctor who provided medical treatment to the lawyer’s client. The committee opined that it is not unethical for a lawyer to pay a treating physician, testifying as a fact witness, the reasonable expenses incurred by the witness in connection with testifying and the reasonable value of the witness’s time in connection with testifying. A lawyer may not ethically pay a witness to induce particular testimony or make payment contingent on the outcome of the litigation. Nor may a lawyer ethically pay a witness when doing so is prohibited by law. See for example RCW 9A.72.090 (bribing a witness) and RCW 9A.72.120 (tampering with a witness).