Search Site
Menu
No Contingent Fee for Experts

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.

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

    We would recommend Atty. Colleen Santora and the entire team at Feinberg & Alban highly. We had a major auto accident in 2012 and my husband also at a bad motorcycle accident as well four years after. We have always relied on her, She is a class act ...

    Read more

    Kyle Meahl

  • google
    5.0/5.0

    Attorney Feinberg is an excellent attorney with top level trial skills. He has given invaluable insight and knowledge on cases at trial that only an attorney of his caliber and experience could provide. I would highly recommend him and his staff.

    Read more

    Jeremy Carroll

  • google
    5.0/5.0

    I highly recommend this law firm to anybody in need of a excellent Attorney. Colleen is very responsive as well as friendly and caring!! I had a great experience working with her an as i mentioned above i would recommend her office.

    Read more

    Keri Pait

  • google
    5.0/5.0

    Marsha was experienced, very helpful and thorough. Absolutely wonderful to work with! I would highly recommend her and this firm to anyone!

    Read more

    Tedrina R

  • google
    5.0/5.0

    I would highly recommend Marsha Alban and her team. I am extremely happy with their work!!

    Read more

    Sasha Dubinsky

See all reviews
Awards & Affiliations
Contact us

Quick Contact Form