No Contingent Fee for Experts

It is a well-established practice that a lawyer cannot employ an expert witness on a contingency fee. It is common for personal injury lawyers to use a contingency fee agreement, whereby they are only paid if the plaintiff receives a settlement or award, but this practice is strictly forbidden for experts. Rule 3.4 of the Massachusetts Rules of Professional Conduct states that a lawyer shall not “pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his or her testimony or the outcome of the case.” Supreme Judicial Court Rule 3:07, 3.4. Also, many licensing boards, such as boards of medicine, ban their members from testifying on contingency fees. Violators may face disciplinary action from their governing boards.

This rule has been in existence for as long as I have been aware, previously contained in Massachusetts DR 7-109(C).As the comment to the present rule states, “Compensation of a witness may not be based on the content of the witness’s testimony or the result of the proceeding.” Its purpose is to ensure that the opinions are rendered without consideration of the financial implications. It would truly create a conflict of interest if the rule were otherwise. This is not to say that experts are unbiased. However, cross-examination should accomplish the task of exposing a biased opinion, including one motivated by financial gain, even where the financial gain is not contingent upon the outcome.

As the comment to Rule 3.4 adds, “A lawyer may pay a reasonable fee for the professional services of an expert witness.” My office does that. Bear in mind, however, the contingent fee agreement, as published in Rule 3:07, Massachusetts Rules of Professional Conduct, promulgated by the Supreme Judicial Court, makes clear that the ultimate responsibility for those expenses is the client’s.