For purposes of responding to your inquiry, the Committee has considered the following facts: You were aware of two witnesses to a car accident involving a plaintiff you represented. You arranged for the witnesses to attend the arbitration. You do not remember the specifics of any conversation regarding the payment of a witness fee to these witnesses. However, one of the witnesses claims that you promised to pay him a 2 percent contingency fee. You believe that you would have promised to reimburse the witnesses only for lost wages. You ask how to proceed at this time.
Your inquiry is controlled by Rule 3.4, Fairness to Opposing Party and Counsel, which provides relevant part:
A lawyer shall not:
(a) falsify evidence, counsel or assist a witness to testify falsely, pay or acquiesce in the payment of compensation to a witness contingent upon the witness' testimony or outcome of the case; but a lawyer may pay, cause to be paid, or acquiesce in the payment of:
(1) expenses reasonably incurred by a witness in attending or testifying;
(2) reasonable compensation to a witness for the witness' loss of time in attending or testifying;
(3) a reasonable fee for the professional services of an expert witness.
The most that can be paid to fact witnesses such as the witness referred to in your inquiry is the witness reasonable expenses incurred in attending the arbitration, such as parking and travel expenses, as well as reasonable compensation for his time, i.e., lost wages occasioned by the attendance at the arbitration. Had you promised the witness a 2 percent contingency fee, you would have been in violation of Rule 3.4(b) because the contingency fee is directly prohibited by the rule. In addition, a 2 percent contingency payment could also constitute a fee sharing with a non-attorney in violation of Rule of Professional Conduct Rule 5.4(a).