Ethics Opinion

Opinion No. 00-2

February 2000

Summary: The permission granted by Mass. R. Prof. C. 3.4(g) for a lawyer to pay to a witness expenses reasonably incurred in attending or testifying and reasonable compensation for loss of time in attending or testifying should not be applied to permit a lawyer-witness to accept the listed payments when subpoenaed by one former client to testify against another former client in connection with matters in which he represented them jointly.

Facts: At some time in the past, Lawyer represented Former Client One and her partner Former Client 2 in matters against a third party. He also represented the partnership in several other matters at the same time involving more or less contact with each of the partners at various times. Former Clients One and Two are now engaged in litigation with one another and Lawyer has been served by Former Client One with a subpoena to appear as a witness at a deposition and trial. The subject matter of his testimony would involve the work he did for the partnership and the contents of the documents in the relevant case files. He expects to spend several hours reviewing the case files, traveling to and from the place where the testimony will be taken, and consulting with Former Client One's current attorney in preparation for his testimony. Lawyer inquires whether he may charge Former Client One for expenses, lost time, and work done in connection with his appearance as a witness at a deposition or trial.
Discussion: By way of introduction, Lawyer asserts his belief that he will be able to testify without revealing any attorney-client communications. However, there is no attorney-client privilege with respect to communications among Lawyer and his former clients with respect to the matters in which they were Lawyer's joint clients. See Massachusetts Rule of Professional Conduct 1.7, Comment 12B.

The Committee has assumed that Lawyer will be appearing as a fact witness and will not be providing "legal services" for which he could charge a legal fee under Rule 1.5 if not disqualified from doing so. Rule 3.4 (g) addresses the general subject matter of the inquiry in the context of payment by a lawyer to an ordinary fact witness. It provides:

A lawyer shall not . . .
(g) pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his or her testimony or the outcome of the case. But 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
(3) a reasonable fee for the professional services of an expert witness.

While the Rule is directed at the lawyer who wants to pay a witness and not at the witness who is to receive payment, its purpose is to set forth what payments may properly be paid and in that regard encompasses, at least implicitly, lawyer-witnesses as well as lawyer-payers. The structure of the Rule is that it first states what a lawyer may not do and then states certain types of payments to ordinary witnesses that do not violate the initial prohibition. Whether those types include the time lost in preparing to testify is not clear from the text of the Rule. However, the Committee has already advised in its Opinion 91-3 that under DR 7-109, the predecessor of Rule 3.4(g), which contained the same prohibition in similar language, a former employee of a party could be compensated for the time spent in attending at and preparing for trial beyond the witness' expenses and any financial loss. In reaching this conclusion, the Committee made clear that it was "addressing only the fact situation presented in this inquiry" and that it was "leaving other circumstances that raise similar policy considerations for the future."
In the Committee's view, the permission granted by Rule 3.4(g) to make the listed payments does not include permission to make such payments when other principles embodied in the Rules of Professional Conduct are threatened. A lawyer who has represented two clients jointly owes them equal loyalty with respect to that representation. That loyalty obligation infuses the entire Massachusetts Rules of Professional Conduct. See Rule 1.7, Comment 1 ("Loyalty is an essential element in the lawyer's relationship to a client."), Comment 4, and Comment 6; Rule 1.2, Comment 1A; Rule 1.9(a) and (c)(1) and Comments 2-4 and 11 to that Rule. In our view, acceptance by a lawyer of a proposal by Former Client One to pay the lawyer for preparation of testimony and for testifying regarding matters that arose during the lawyer's representation of both is a threat to that obligation of equal loyalty. While the lawyer's obligation is to testify truthfully in any event, it would be reasonable for Former Client Two to fear that the whole process of preparation for testifying, the searching and reviewing of memory and files, may be affected, even subconsciously, by the payment. That payment also puts pressure on Former Client Two to contribute to the payment in order to prevent any such effect. Our advice therefore is that the loyalty principle embodied in the Massachusetts Rules of Professional Conduct and the common law of professional responsibility forbids acceptance of the proposed payment.
Even though the proposed compensation is not paid, Lawyer is, of course, still obligated to appear in response to a subpoena with any documents he is ordered to produce and to testify as required. He may receive the standard witness fee and costs that any lay witness would receive.
We were not asked to address, and therefore have not addressed, other possible issues that might have arisen in the factual situation presented, including the issue of the obligation of Lawyer to have notified Former Client Two about Former Client One's subpoena and any further obligation of Lawyer to have made himself available to consult with Former Client Two's attorney in the same fashion as he expects to consult with Former Client One's attorney.
This advice is that of a committee without official government status.