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Syllabus
A lawyer should not pay or agree to pay to a lay witness an amount in excess of reimbursement for actual out-of-pocket loss or expense incident to his being a witness, except for such statutory witness fees and mileage which exceed that amount.
Facts
An attorney regularly pays a police officer from $15 to $25 to return to the scene of the collision to refresh his memory, to review his testimony with the attorney prior to the collision trial, and to appear and testify as a non-expert witness at that trial. In addition, the attorney regularly offers to reimburse other lay witnesses for any out-of-pocket expenses occasioned by the attendance and tes timony of such witnesses at trial.
Opinion
The Canons of Professional Ethics currently govern the conduct of attorneys practicing law in Colorado. Canon 39 states in part that an attorney "should scrupulously avoid any suggestion calcu lated to induce the witness to suppress or deviate from the truth, or in any degree to affect his free and untrammeled conduct when appearing at the trial or the witness stand."
The Code of Professional Responsibility, which has been adopted by the American Bar Asso ciation, and has been recommended to the Colorado Bar Association by its Ethics Committee for adoption as the standard of conduct governing attorneys in Colorado, is in complete accord with the spirit of Canon 39 as concerns payments to lay or non-expert witnesses. Specifically, the Code, in elaboration of Canon 39, provides: "Witnesses should always testify truthfully and should be free from any financial inducements that might tempt them to do otherwise. A lawyer should not pay or agree to pay a non-expert witness an amount in excess of reimbursement for expenses and financial loss incident to his being a witness. . . ." (Code of Professional Responsibility, EC 7-28.)
Whether or not it was so intended, a possible effect of payment to a lay witness beyond that of reimbursement for actual out-of-pocket loss or expense would be to cause the witness to feel some obligation to the party making such payment, with a resultant effect on the testimony of that witness. To put it another way, any such excess payment tends to threaten the neutrality and objectivity of the witness who receives it. As stated by Canon 39, any action on the part of counsel which might suggest such a result should be scrupulously avoided. Therefore, a lawyer should not pay or agree to pay to a lay witness an amount in excess of reimbursement for actual out-of-pocket loss or expense incident to his being a witness, except for such statutory witness fees and mileage which exceed that amount. Where the amount of reimbursement for the witness's out-of-pocket loss or expense is greater than the statutory witness fee and mileage, the total amount to be paid to the witness should not exceed the witness's actual out-of-pocket loss or expense.
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