December 6, 1988
It is ethically improper for an attorney to charge a client a fee at the lawyer's normal hourly rate for time expended in being deposed by an adverse party pursuing discovery.
References: MRPC 1.5; MCL 600.2552(2), MSA 27A.2552(2).
A lawyer handled a transaction involving the sale of certain assets from a corporation closely held by the client. The sale included an agreement by the client not to compete with the purchaser for a period of five years. Subsequent to the death of the client, the purchaser ceased making payments under the terms of the covenant not to compete. The lawyer represents the personal representative of the estate in a court action alleging a breach of contract by the purchaser.
During the course of discovery, certain allegations were made by a potential witness for the purchaser concerning a meeting conducted in the offices of the lawyer; the meeting was attended by the deceased client, the lawyer, and the prospective witness. Because it became apparent that the lawyer might become a witness in the case, the personal representative retained independent counsel, but the lawyer has continued as co-counsel. The propriety of the lawyer's decision to remain as co-counsel was challenged by the opposing party and has not yet been decided by the court. The lawyer is scheduled to be deposed by the opposing party and wishes to charge the client personal representative for the time expended in being deposed.
We note MCL 600.2552(2), MSA 27A.2552(2), which provides:
"No attorney or counsel in any cause in which he may be interested as attorney or counsel, shall be allowed any fee for attending as a witness in such case."
Whether the proposed conduct of the lawyer violates this statute is a question of law beyond the scope of this committee's jurisdiction.
It appears that any relevant testimony the lawyer may have to offer would be of a factual nature and not as an expert witness. For that reason, the only witness fee to which the lawyer would be entitled, if any, would be that provided for by statute. Since the time spent by the lawyer in testifying would be as a witness and not time spent providing legal services, to charge a client at the lawyer's normal hourly rate would be a clearly excessive fee in violation of MRPC 1.5. For that reason, the conduct proposed would be ethically improper.