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Advisory Opinion 35

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State Disciplinary Board
Advisory Opinion No. 35
July 15, 1983

Attorney's Responsibilities with Respect to the Payment of Witness Fees

Pursuant to the provisions of Rule 4-223 of the Rules and Regulations of the Organization and Government of the State Bar of Georgia (219 Ga. 873, as amended), the State Disciplinary Board of the State Bar of Georgia, after a proper request of such, renders its opinion concerning the proper interpretation of the Code of Professional Responsibility of the State Bar of Georgia.

Question Presented: Attorney (A) represents Client (C), the plaintiff in a civil suit for damages. In the course of preparation for C's case, A uses the services of an expert witness (W); nothing specific is mentioned concerning compensation of W.

C has no substantial asset other than the claim that is the subject of the suit, and will be able to pay the witness fees only if he is successful in securing a recovery. By the same token, if A advances the fees to W, A will have little or no chance of being reimbursed by C, if C loses his case.

(1) Would it be proper for A to pay the costs, realizing that he might never be reimbursed by C?

(2) Would it be proper for A to say nothing and keep W waiting for payment until some recovery has been had?

(3) Generally, should the State Bar reconsider the ethical prohibition against contingency fees for expert witnesses in light of the practicalities involved?

Opinion: Standard 58 of Bar Rule 4-102 and DR 7-109 (c) expressly prohibit payment of compensation to a witness contingent upon the outcome of a case. Standard 58 does not, however, prohibit an attorney from advancing, guaranteeing or acquiescing in the payment of expenses reasonably incurred by a witness.

Standard 32 of Bar Rule 4-102 requires that the client must remain ultimately liable for any expenses advanced or guaranteed by the attorney. Ethical Consideration 5-8 (Canon 5) explains that it is not proper for an attorney to have a financial interest in the outcome of his client's case, as such an interest might affect his independent professional judgment; thus, the client must remain ultimately liable for the expenses of litigation.

A (the attorney in the set of facts above) is not sure what he is ethically required to do in light of Standards 32 and 58. If A pays the fees to W and C loses his case, C will not be able to repay A. Is this, in fact, a violation of Standard 32?

The Board's answer to this question must be that such a situation does not violate Standard 32. While it is true that A may never be paid by C for the expenses advanced to W, C is still ultimately liable to A for his expenses. A can pursue legal remedy against C and might be reimbursed at some point in the future. Thus, A's liability to W is at most penultimate.

It should be noted that in Brown and Huseby, Inc. v. Chrietzberg, 242 Ga. 232, 248 S.E. 2d 631 (1978), the Supreme Court of Georgia held an attorney may be liable for court reporter's fees if he personally guarantees payment therefor and the reporter reasonably relies upon the attorney for their payments. The Court stated that such a holding did not force the attorney to violate Standard 32, as the client would remain ultimately liable to the attorney.

A also wonders if he can simply make W wait until the final outcome of the case, realizing that, in effect, W can only collect from C if C is successful. A fears that such a course of action (or inaction) might violate Standard 58's prohibition against contingency fees for witnesses.

The Board, once again, finds no violation of a disciplinary standard here. First, there is no actual contingency. The term contingency implies that no liability will arise without the happening of a certain event. In this case, C will have a legal obligation to pay W even if he cannot, in fact, pay him. Secondly, A might be required to pay W under the doctrine of Brown and Huseby. In either event, W will not be required to await the outcome of the case to have a claim against C and/or A for recovery of the services he has rendered.

Finally, A thinks that the prohibition against contingency fees for witnesses is impractical and ought to be reconsidered.

It should be noted that rules substantially similar to Rule 58 have met constitutional challenges (e.g. Pearson v. Association of Bar of City of New York, cert. den. 434 US 924 (1978) ). The Board finds that the problem in A's case does not stem from any impracticality inherent in rule 58. Rather, A's problem arose when he failed to discuss the details of compensation with W, before he used W's services. Witnesses should know who to look to for payment for their services from the outset. An attorney's failure to appraise the witness of such details might put him in A's seemingly no-win (financial, rather than ethical) situation.

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