New York Ethics Opinion: You can pay for physical evidence, but….

The New York State Bar Association Committee on Professional Ethics in Opinion 997 (1/24/14) analyzed whether a lawyer could pay a store owner for a video tape from the store’s surveillance camera that was pertinent to a personal injury claim the lawyer had brought.  You can imagine that sort of issue arising in patent litigation.

The bar association recognized that Rule 3.4(b) (in all states I’m aware of) severely limits payments to witnesses, limiting for example payments to fact witnesses to reimburse for reasonable time and expenses.  The bar opinion said that payments to physical evidence were outside the scope of the rule, but had two central limitations:  falsification of evidence was obviously a concern when payment was demanded; payments can’t be masked witness payments that violated Rule 3.4(b).

On the other hand, the opinion suggested that there may even be an affirmative duty to buy the evidence!

 

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.