2011-07 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 2011-07

Rules: 4–3.4

Transactions with Persons other than Clients

Fairness to Opposing Party and Counsel

Subject: Duties to Opposing Party and Counsel

Summary: payment of fact witness for out-of-pocket expenses and time spent testifying

Question: Attorney’s corporate Client is preparing for binding arbitration of several pending matters. The testimony and pre-arbitration assistance of one fact witness, now a retired, former employee of Client with years of involvement in the matters in dispute, will be essential to establishing Client’s case. May Attorney advise Client to enter into a consulting agreement with the witness to reimburse the witness for out-of-pocket expenses and to pay the witness an hourly rate for case preparation and time spent testifying?
Answer: Unless the arrangement is prohibited by law, Attorney would not violate Rule 4 dash–3.4(b) by advising Client to enter into the proposed consulting agreement with the witness. Fact witnesses may be compensated for preparation time, including pre-trial meetings with attorneys and time spent on review and research. The rate of compensation must be reasonable and based on a realistic assessment of the fair market value of the witness’s time or on actual lost wages or some other reasonable rate. Whether the compensation agreement comports with applicable law is a matter outside the scope of this opinion.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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