UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 02-10
Attorney A represents Client in a criminal matter during which Attorney A promises to compensate Fact Witness for expenses incurred as a result of being subpoenaed for trial. Fact Witness is the sole proprietor of a small business and has no employees to run the business in her absence. The criminal matter is ultimately resolved in Client's favor. Attorney A never compensates Fact Witness as promised.
Subsequently, Attorney B represents Client in a civil action arising out of the same set of operative facts as the criminal matter. Fact Witness's testimony is important to Client's success in the civil action. Client wants Attorney B to compensate Fact Witness for her time expended in the previous criminal trial.
Question:
Is it ethically permissible for Attorney B to pay Fact Witness the compensation promised by Attorney A in the previous criminal case?
Summary:
Under the facts presented, compensating Fact Witness for her prior testimony in the underlying criminal trial constitutes the payment of an antecedent debt that is unrelated to the present litigation, which is improper under the South Carolina Rules of Professional Conduct.
Opinion:
Under Rule 1.8(e) of the South Carolina Rules of Professional Conduct, a lawyer "shall not provide financial assistance to a client in connection with pending or contemplated litigation." Rule 1.8(e), S.C. App. R. 407. A limited exception to this general rule allows an a lawyer to "advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter . . . ." Rule 1.8(e)(1). Nevertheless, under the facts presented, compensating Fact Witness for her prior testimony in the underlying criminal trial constitutes the payment of an antecedent debt that is unrelated to the present litigation.
The text of Rule 1.8(e) plainly states that expenses of litigation may be advanced for "pending or contemplated litigation." Rule 1.8(e). The payment of expenses for concluded litigation is not permissible under the rule. Although the criminal and civil trials in this inquiry are intertwined, they are separate and distinct cases. Therefore, to compensate Fact Witness for her testimony in the concluded criminal trial would constitute the payment of an antecedent debt unrelated to the present litigation.
Nothing in this Rule, however, prohibits Attorney B from compensating Fact Witness for her loss of time in the present litigation provided that the compensation is reasonable and not calculated to influence her testimony. See ABA Formal Op. #96-402 (stating that "so long as it is made clear to the witness that the payment is not being made for the substance or efficacy of the witness's testimony, and is being made solely for the purpose of compensating the witness for the time the witness has lost in order to give testimony in litigation in which the witness is not a party, the Committee is of the view that such payments do not violate the Model Rules". Nevertheless, payment of an antecedent debt unrelated to the present litigation, such as in this case, is improper under the South Carolina Rules of Professional Conduct.