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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.

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    This attorney office is highly efficient, amazing, and professional. They made me feel very comfortable and was invested in my interest. Communication through my whole experience was always professional and prompt. I highly recommend them to anyone w...

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    I was in a car accident recently, and was lost in the process of what to do post my injuries. I contacted Feinberg & Alban, where I was introduced to Colleen Santora, who was the best resource I could have ever imagined. Colleen was knowledgable, emp...

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    I got in touch with Colleen Santora of Feinberg & Alban PC, after I fell in the parking lot of a hotel in Boston , in 2018. The hotel was just dragging and at the end of a year plus, offered me $5 thousand as full and final settlement. On getting i...

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    Robert Feinberg did a fantastic job handling our case. He is a thoughtful, caring man, cordial and a complete professional. The settlement we received was more than we had ever anticipated, his legal work is beyond reproach. Thank you Robert!!

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    After my motorcycle accident I contacted Feinberg & Alban. I met with Marsha for a consultation and she was great. Their entire team kept me in the loop for the entire process. Colleen was also a part of my case, she help me with understanding a lot ...

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