Search Site
Menu

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.

Leave a Reply

Your email address will not be published. Required fields are marked *

Feinberg & Alban, P.C. fervently protects your rights
  • The Boston firm of Feinberg & Alban, P.C. specializes its practice in the area of personal injury.

    The attorneys serve the entire state of Massachusetts in addition to affiliating with lawyers in other states to handle cases outside of Massachusetts.

  • $7.7 Million Award for Feinberg & Alban Client in Personal Injury Trial

    Boston Attorneys Win Highest Injury Verdict in Massachusetts in 2011 & 2012.

Client Reviews
  • google
    5.0/5.0

    Wish I could give higher than a 5 for this review. From the start the dedication to detail, care and skill that was applied to my case was outstanding. Robert Feinberg is exceptional at representing his clients. His depth & breadth of experience ma...

    Read more

    Rose M

  • google
    5.0/5.0

    After researching online, hiring Attorney Colleen Santora was the wisest decision I made. She represented me in my personal injury auto accident case. I sustained lingering post-concussive injuries and pain. Throughout a four year process, Colleen...

    Read more

    Diane DeMarco

  • google
    5.0/5.0

    Feinberg & Alban did a stellar job representing me at a time when my accident and a busy life didn't leave me any capacity to deal with the logistics of a lawsuit. From across the country, the firm (Ms. Colleen Santora, in particular) handled every a...

    Read more

    Trevor Zierhut

  • google
    5.0/5.0

    I was in a car accident recently that put me in the hospital and having Perry Feinberg from Feinberg & Alban was the best decision I ever made, with having so many choices for representation in these situations. The level of professionalism was incre...

    Read more

    John Stenis

  • google
    5.0/5.0

    I can't say enough about this law firm, and its commitment to its clients. Robert & Colleen took a personal interest in my case, which took several unexpected and frankly wild twists and turns along a very long road. They stuck with it, with me, even...

    Read more

    Wu tang Is for the children

See all reviews
Awards & Affiliations
Contact us

Quick Contact Form