The laws of many jurisdictions exclude contingent expert fees, as do the ethics rules of many bar associations, including the rules of the United States Bar Association. The rule does allow the payment of a reasonable fee for the professional services of an expert. The California rule is based on ABA Disciplinary Rule 7-109 (C) and is intended to protect against an undue incentive for false or biased witness testimony. In the facts stated in ABA Informal Opinion No.
However, it should be noted that rule 7-107 (C) specifically prohibits consenting to payment of a contingent witness fee. A member of the State Bar Association cannot simply turn a blind eye to the substantial possibility that the established agreement could simply be a subterfuge to pay a contingent witness fee. For this reason, Informal Opinion No. It should also be recognized that any real business, such as the Consulting Service, is likely to maintain a group of experts that you turn to for testimony.
Expert agreements may be such that witnesses receive a share in the outcome of litigation due to their repeated use by the Consulting Service, and their repeated compensation for it. Obviously, the lawyer must carefully explore these issues in the face of the possibility of a surprise disclosure at trial with a devastating effect on the client's case. In the event that the lawyer discovers that the compensation of witnesses depends essentially on the testimony or outcome, this lawyer will violate rule 7-107 (C) if he consents to the arrangements by allowing such testimony. Several commentators have criticized the rule on the basis that there are enough controls available against testimony or perjury to make a general ban unnecessary.
See Note, Contingent Fees for Expert Witnesses in Civil Litigation, 86 Yale L, J. The new ABA Model Rules of Professional Conduct make the absolute prohibition of DR 7-107 (C) a little more flexible. The new Model Rule 3.4 (b) now states that a lawyer should not offer an incentive to a witness that is prohibited by law. The commentary to the new rule simply points out that the common law rule in most jurisdictions makes it improper to pay a witness to an event any fee for testifying and.
It is not right to pay an expert a contingent fee. Rule 3-102 (B) prohibits an attorney from compensating, giving or promising anything of value to a person or entity for the purpose of recommending or securing employment or as a reward for making a recommendation for employment, and section 6152 of the Business and Professions Code makes it illegal for any person to act as a broker or stopper of a lawyer. These provisions were recently discussed in Formal Opinion No. However, in considering the question of why a lawyer would recommend to a client the type of agreement being considered, particularly in the light of the wide availability of medical experts, the Committee was concerned that the known willingness of a lawyer to recommend such arrangements to his or her clients would result in the referral of cases to that lawyer by the Consulting Service, to whose attention the case could have been brought first.
The Committee believes that any understanding, express or implied, that counsel will recommend retention of the Consulting Service, at any fee, would violate rule 3-102 (B) and section 6152, as well as raise the other ethical considerations discussed above. As the title indicates, a financial expert witness specializes in financial matters. Some types of experts may include a forensic accounting expert witness, a business valuation expert witness, and an intellectual property expert witness.