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 97-42
Husband and Wife have divorced and are now involved in a subsequent proceeding to determine the validity of a separation agreement, the terms of which have been challenged by Wife.
Husband subpoenaed three unrelated, independent attorneys to prove the fact that Wife had the benefit of independent legal counsel before entering into various property settlement agreements during the course of the marital relationship. These attorneys were therefore fact witnesses, not expert witnesses.
After the hearing, each of Wife's three former attorneys submitted bills to Husband for their time in appearing at the hearing. The reasonableness of these fees is not disputed.
QUESTION:
1. Is it permissible to pay a fact witness a fee in excess of the fee specified in Rule 45(b)(1) of the South Carolina Rules of Civil Procedure?
2. Is the fact that the witness is an attorney relevant to the answer to Question 1?
3. If it is permissible to pay such a fee to a witness, should the court be notified that a fee has been paid and the amount so paid?
SUMMARY:
This Committee does not render opinions on matters of law or statutory interpretation. It does, however, undertake to guide practitioners in matters of ethical propriety. To the extent that payment of witness fees may be legally permissible, there would appear to be no ethical prohibition upon such payment being made under the facts presented.
OPINION:
This Committee has considered essentially the same question in Ethics Advisory Opinion 93-36, as has the American Bar Association (ABA) in its Formal Opinion 96-402.
The gist of these two opinions is that so long as the payment ?. . . is legally permissible . . .? (S.C. Ethics Advisory Opinion 93-36) and ?. . . does not violate the law of the jurisdiction[.]? (ABA Opinion 96-402), there is no inherent violation of Rule 407 of the South Carolina Appellate Court Rules or of the ABA Model Rules of Professional Conduct.
Assuming for the purpose of this discussion that a payment to a witness beyond that required to effect a subpoena under Rule 45 (S.C. Rules Civ. Proc.) is not unlawful, the language of the ABA opinion is instructive:
As long as it is made clear to the witness that the payment is not being made for the substance or the 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 [ABA] Committee is of the view that such payments do not violate the Model Rules.
As for Question 2, this Committee is of the opinion that the profession of the witness has no bearing on the answer to the underlying question, in this particular case.
This Committee declines to answer Question 3, as no question of ethical behavior is presented.
This Committee takes this opportunity to reaffirm its Opinion 93-36, especially in light of the subsequent ABA opinion (issued in 1996).