February 24, 1992
A lawyer who knows that a client and a witness have a private financial arrangement regarding the witness's testimony on behalf of the client shall advise the client regarding the limits of appropriate compensation and seek to persuade the client to restrict any financial arrangements to those parameters authorized by law and ethics rules.
The lawyer may not allow the lawyer's services to be used to further an illegal or fraudulent act of the client regarding the testimony of the witness.
References: MRPC 1.2(c), 1.6(c)(3), 3.3(a)(2), 3.4(b); MCL 600.2552.
A lawyer is representing plaintiffs who were involved in a motor vehicle collision while participating in a funeral procession. The clients, whose car was approximately ten cars back, followed the procession through a red traffic signal. While in the intersection, the clients' car was struck broadside by a car which had the green light but allegedly disregarded the funeral procession. The defendant has testified to not having seen any other cars in the procession, indicating that the clients were lagging too far behind in the procession. This testimony is contradicted by witnesses from the two cars behind the clients.
The lawyer eventually located and spoke with the driver of the car in front of the clients, who confirmed the testimony of the plaintiffs. During the course of conversation, it was disclosed that the witness would be "getting something" from the clients in return for the time and trouble of testifying. It was further disclosed that the witness and the clients "periodically do things for one another."
The lawyer asks what ethical duties are triggered regarding the relationship between the client and the witness, in the event the lawyer wishes to use the witness at trial.
Reasonable compensation of a witness is permissible by statute. MCL 600.2552 provides:
"Witnesses shall receive for attending in any suit or proceeding pending in a court or record, $12.00 for each day and $6.00 for each half day, or a witness may be paid for his loss of working time, but not more than $15.00 for each day shall be taxable as costs as his witness fee. Witnesses shall receive for traveling at the rate of 10 cents per mile in coming to the place of attendance and returning therefrom, to be estimated from the residence of such witness, if within this state, or from the boundary line of this state, which such witness passed in coming, if his residence is out of the state."
MRPC 3.4 states in part:
"A lawyer shall not:
". . .
"(b)falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; . . . ." Emphasis added.
The comments to MRPC 3.4(b) further provide, in part:
". . . [I]t is not improper to pay witness' expenses or to compensate an expert witness on terms permitted by law. It is, however, improper to pay an occurrence witness any fee for testifying beyond that authorized by law, and it is improper to pay an expert witness a contingent fee." Emphasis added.
From the facts presented, the Committee cannot and does not tender any opinion on the "reasonableness" of such compensation. It remains the responsibility of the lawyer to evaluate from known facts whether or not the compensation being offered to the witness is "beyond that authorized by law." Although the Committee does not generally consider questions of law, MCL 600.2552 would appear to establish minimum levels of compensation for a witness.
The witness' and clients' statements that they "periodically do things for one another" might legitimately give cause for some concern. Any collusive activity between the clients and witness is obviously prohibited. Negating such concern regarding collusive activity in this instance, however, is the fact that this witness is merely corroborating the favorable testimony of two other wholly independent witnesses.
Provided that the lawyer does not know or suspect compensation beyond that permitted by law or for a purpose violative of MRPC 3.4(b) or other law, there would not appear to be any further affirmative duty of inquiry concerning the clients' compensation of this witness. In this event, the lawyer may call the witness to testify at trial and would not have any duty of disclosure to the court or opposing counsel.
If the lawyer was aware of some criminal, fraudulent or otherwise illegal activity between the clients and this witness, MRPC 1.2(d), 1.6(c)(3) and 3.3(a)(2) may apply. The Committee does not, however, address the issues raised by those rules in this opinion.
Compensating a witness for the purpose of influencing testimony or making the witness "sympathetic" is clearly prohibited. Payment, however, by a lawyer of expenses reasonably incurred by the witness and reasonable compensation for loss of earnings in necessary preparation, attending and testifying is permitted. There is no rule which would prohibit a client from making this payment if the client's lawyer were permitted to pay such compensation; MRPC 8.4(a) is not implicated. A client, therefore, may reasonably compensate a witness for the witness' expense and loss incurred for preparation, attendance and testifying at trial.