Ethically Speaking
Lawyers as Witnesses: What about my fees?
By Nancy Carruthers, Practice Advisor, Law Society of Alberta
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 The subpoena has arrived, and you are expected to testify for your former client in an upcoming trial. It is going to take at least a couple of days to review your old file materials and meet with trial counsel to prepare, and your testimony may last the better part of a day. This means you are going to be away from the office, and losing valuable billable hours. So what are your options?
The Code of Professional Conduct provides in Chapter 10, Rule 23, that: “A lawyer must not permit or participate in a payment or other benefit to a witness in excess of reasonable compensation.” The commentary confirms that it is ethical for a lawyer to agree that a witness will be paid reasonable out-of-pocket expenses and loss of income incurred by the witness as a result of appearing in court. But what is reasonable? You have to keep in mind that we all have an obligation to be witnesses in a court of law and must be prepared to incur some inconvenience or financial detriment. Further, excessive payments to witnesses have the appearance of impropriety.
A lawyer may enter into an agreement with his former client to be paid a reasonable amount for his or her time in preparing for and attending trial. The lawyer cannot, however, demand such payment as a condition of attendance. Parties to litigation are limited in their ability to recover costs paid to professionals who attend trial as lay witnesses, and it would simply be unfair to require them to pay costs to professional witnesses which they would not be entitled to recover.
In Electrohome Ltd. v. Gregg Properties Co., [2003] A.J. No. 266, Veit J. did not allow the successful plaintiff to recover costs from the opposite party, paid to the plaintiff's former lawyer in connection with the time spent to prepare for and give evidence at trial. The lawyer was not testifying |
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as an expert and, although he may have been paid by his former client, the unsuccessful party was not liable for the cost. The court stated that an individual who receives a summons to appear at trial with relevant documents must do so, or apply to strike down the summons. If, however, the witness is necessary, the court will not strike the summons. Everyone who comes to trial to testify must take time to prepare and to review their files, and the obligation to come to trial, prepared to testify, falls on everyone who is summonsed to appear. The cost of doing so is the responsibility of the witness, although the cost may of course be offset by payment of any fees and disbursements which are allowed by the Rules of Court, and the presiding justice, for lay witnesses.
A possible exception may exist in the case of a lawyer who has, for example, prepared a will and is called to testify in later proceedings, in the event the testator's capacity may be challenged. In McCullough Estate v. Ayer, [1997] A.J. No. 417, Kent J. allowed lawyers who testified about their previous dealings with the testator to be compensated from the estate, where the will had been challenged on the grounds of lack of capacity and undue influence. The unsuccessful parties argued that the lawyers had appeared only as lay witnesses and should not be compensated as professionals or experts. The court held that they had been acting as professionals in their dealings with the testator, and it was that relationship which caused them to be required to prepare for and attend at court. Accordingly, their full accounts were paid from the estate funds.
The obligation to appear as a witness is also consistent with a lawyer's ethical duty to uphold the law and support the administration of justice. While you may be fortunate enough to secure your former client's agreement to compensate you for at least some of your time, you will be obliged to prepare and attend trial. It should go without saying, however, that trial counsel should be considerate of witnesses, and do everything possible to limit the inconvenience associated with the requirement to testify.  | |
CPD Program Presentations Aim to Engage Lawyers
Continued from page 08
“It goes without saying that that there has to be some kind of continuing professional development requirement. The self-directed approach should work for all lawyers. It works for us.”
Gillian Marriott, Managing Partner
Dunphy Best Blocksom LLP, Calgary |
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