Rule of Professional Conduct 3.4(b) states that it is improper to "offer an inducement to a witness that is prohibited by law." Comment 3 to the rule states that "[t]he common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying," though "it is not improper to pay a witness's expenses." (Of course, the rules for expert witnesses are quite different.) An interesting article in yesterday's BNA Criminal Law Reporter (available here if you have a subscription) asks whether paying a witness's legal fees in connection with a pretrial interview is permitted. For example, suppose that Dan Defendant is a mortgage broker charged with mortgage fraud. He wants to interview Wanda Witness, a former co-worker who is expected to testify for the prosecution. Wanda is concerned about her own potential liability but wants to be transparent, so she agrees to be interviewed on the condition that Dan pay for her lawyer to attend the interview. May Dan do so? The question is not an easy one. There is authority for the proposition that "free legal service[s]" may be an inducement. Biocore Medical Technologies, Inc. v. Khosrowshahi, 181 F.R.D. 660 (D. Kan. 1998). But Wanda does not have an independent desire for the free legal services in question; she needs them only in connection with the interview Dan requested. The authors of the article argue that Dan may pay Wanda's legal fees, relying in part on South Carolina Bar Ethics Advisory Opinion 08-05. [...]
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