Advisory Opinion: 1908

Year Issued: 2000

RPC(s): RCW 3.4(b); RCW 9A.72.090; RCW 9A.72.120

Subject: Paying treating physician for trial testimony when doctor testifying as fact, not expert, witness

The inquirer asked if it is ethical for a lawyer to pay for the trial testimony of a doctor who provided medical treatment to the lawyer’s client. The committee opined that it is not unethical for a lawyer to pay a treating physician, testifying as a fact witness, the reasonable expenses incurred by the witness in connection with testifying and the reasonable value of the witness’s time in connection with testifying. A lawyer may not ethically pay a witness to induce particular testimony or make payment contingent on the outcome of the litigation. Nor may a lawyer ethically pay a witness when doing so is prohibited by law. See for example RCW 9A.72.090 (bribing a witness) and RCW 9A.72.120 (tampering with a witness).

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.