May 20, 2015 Articles

When Former Employees Are Fact Witnesses: A Guide to the Ethical Landscape

Be sure to research the state's ethics rules, opinions, and case law before doling out compensation

by Andrew Graeve

Commonly, a former employee is at the center of the alleged facts, has specialized knowledge that provides justification for using the former employee as a consultant on the case, or is the best option for a Rule 30(b)(6) representative on certain topics. In either situation, the issue of whether the former employee may be compensated for his or her lost time may arise.

Nearly 20 years ago, the ABA Committee on Ethics and Professional Responsibility approved of reasonable payments to fact witness for their time lost working on and preparing to be a witness in the litigation, as long as it is made clear "that the payment is not made for the substance or efficacy of the witness's testimony." Some states, however, continue to cling to elements of the common law rule strictly limiting payments to fact witnesses. Accordingly, caution and research are advised before making payments to former employees who may be fact witnesses.

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