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 93-36
A lawyer intends to subpoena a health care provider and another lay witness to testify in litigation. The lawyer would like to pay the witnesses a fee in excess of the fee established in the South Carolina Rules of Civil Procedure to compensate the witnesses for such things as lost wages or income.
Question:
May a lawyer pay a fee in excess of the fee established and allowed by the South Carolina Rules of Civil Procedure? If such payment is allowed, what limits exist?
Summary:
The Committee does not render an opinion as to the circumstances in which payments to witnesses in addition to the per diem established under the Rules of Civil Procedure would be allowed by law. To the extent payment is legally permissible, there would appear to be no ethical prohibition upon such payments being made.
Opinion:
This Committee renders opinions only as to ethical issues and thus does not render an opinion as to whether a lawyer may compensate lay witnesses in an amount in excess of the fee established in Rule 45 of the South Carolina Rules of Civil Procedure. To the extent that additional compensation may not be allowed as a matter of law, then any such payment would be a violation of Rule 3.4(b) which prohibits a lawyer from offering "an inducement to a witness that is prohibited by law." To the extent that additional compensation is legally permissible, however, then Rule 3.4(b) would not be violated by the payment of the compensation. The lawyer may properly advance such costs under Rule 1.8(e) as an expense of the litigation. It would, of course, be improper for the lawyer to offer any payments to a witness for the purpose of influencing the witness to testify falsely.