041719 CTEO, Informal 19-01

• Case Date: April 17, 2019
• Court: Connecticut

Informal 19-01 Informal Opinion 19-01 Connecticut Ethics Opinion April 17, 2019          Lawyer May Not, on Behalf of Client, Provide a Fact Witness with a Benefit in Exchange for Testimony           Marcy Tench Stovall, Chair.          A lawyer has a mortgage lender client. After discovery of a structural problem on a mortgaged property, the mortgage lender client and the borrower/guarantors entered into a deed in lieu of foreclosure agreement and settlement agreements for payment of certain amounts owed on the mortgage. One of the settlement agreements provides that one of the loan guarantors ("the Guarantor") will make payments over a few years, and as of now about one-quarter of the payments have been made.          The mortgage lender client is now engaged in litigation with the appraiser of the property with the structural problem. The lawyer has asked the Guarantor for an affidavit relevant to the litigation, and the Guarantor has indicated a willingness to help. But the Guarantor insists upon some form of forbearance, reduction, or forgiveness of some or all of the remaining settlement payments owed to the lender client before he willingly cooperates.          The lawyer asks whether he may, on behalf of the lender client, agree to provide such payment plan forgiveness, debt reduction, or forbearance in exchange for the Guarantor voluntarily providing his testimony.          The Committee concludes that Rules 3.4(2) and 8.4(1) and (4) of the Rules of Professional Conduct prohibit any such payment plan forgiveness, debt reduction, or forbearance in exchange for the Guarantor's testimony.          Rule 3.4(2) provides, in relevant part: "A lawyer shall not... offer an inducement to a witness that is prohibited by law." The Official Commentary to Rule 3.4 adds the following: "it is not improper to pay a witness's expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying ...."^[1]          While the Committee generally avoids addressing questions of law, any analysis...