Compensation and reimbursement of witnesses
Digest
An attorney may acquiesce in the reimbursement of expenses incurred by a witness or the payment of reasonable compensation to a witness for time lost.
Facts
A witness subpoenaed to appear at trial canceled a preplanned vacation to do so, thereby forfeiting a $75 nonrefundable deposit. Other witnesses whom an attorney seeks to interview have demanded that they be paid for their time.
Questions
- Can the subpoenaed witness be reimbursed for the amount of the forfeited vacation deposit?
- Can a reasonable sum for time spent in being interviewed be paid to witnesses?
Opinion
Rule 7-109(c) of the Code of Professional Responsibility provides, in relevant part:
(c)...a lawyer may advance, guarantee or acquiesce in the payment of
(1) expenses reasonably incurred by a witness in attending or testifying;
(2) reasonable compensation to a witness for loss of time in attending or testifying.
It appears that the above provisions permit reimbursement to a subpoenaed witness for sums lost by reason of being required to appear at trial.
To the same effect, we believe such provisions to permit the payment of reasonable compensation to a witness for time spent in being interviewed. The provisions of Rule 7-109 are not on their face limited to attendance at trial or for purposes of deposition. Nor are they limited to permitting compensation only for time lost from a job or profession. Rather, they are written generally to permit compensation to a witness for loss of time in attending or testifying. We believe such provisions to be broad enough to permit, although certainly not mandate, the payment of reasonable compensation to a witness for time spent in being interviewed. However, to the extent that such compensation is in fact for the purpose of influencing testimony, rendering a prospective witness "sympathetic" to one's cause, or suborning perjury, it is indefensible. See In re Howard, 69 Ill.2d 343, 372 N.E.2d 371 (1977); In re Rosen, 438 A.2d 316 (N.J. 1981); In re Robinson, 136 N.Y.S. 548 (1912). Thus, an attorney must be wary in instances where the true purpose of payments made may be subject to question.
References
- Rule 7-109(c)
- In re Howard, 69 Ill.2d 343, 372 N.E.2d 371 (1977)
- In re Rosen, 438 A.2d 316(N.J. 1981)
- In re Robinson, 136 N.Y.S. 548 (1912).