Prior to 2014, Florida’s version of Rule 3.4 provided that a lawyer shall not “fabricate evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness, except a lawyer may pay a witness reasonable expenses incurred by the witness in attending or testifying at proceedings; a reasonable, noncontingent fee for professional services of an expert witness; and reasonable compensation to reimburse a witness for the loss of compensation incurred by reason of preparing for, attending, or testifying at proceedings….”
In 2014, Florida Rule 4-3.4(b) was amended to provide that a lawyer shall not “fabricate evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness, except a lawyer may pay a witness reasonable expenses incurred by the witness in attending or testifying at proceedings; a reasonable, noncontingent fee for professional services of an expert witness; and reasonable compensation to a witness for the time spent preparing for, attending, or testifying at proceedings….”
[The current ABA Model Rule provides more generally that a lawyer shall not “falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.”]
Petitioner Trial Practices Inc. entered into an agreement with Jack J. Antaramian to provide litigation consulting services with Antaramian concerning a multi-million-dollar dispute with his business partner Nassif. The consulting agreement provided that TPI would receive 5% of Antaramian’s gross recovery in the Nassif suit. After that underlying suit resulted in a complex settlement agreement, TPI claimed the 5% fee. Antaramian denied owing TPI a fee, asserting that the settlement agreement with Nassif was a “walk away” agreement with no “gross recovery” to either party. TPI then sued Antaramian for breach of the consulting agreement. The jury returned a verdict in favor of Antaramian, who then moved for attorney’s fees and costs under a broad fee-shifting provision in the consulting agreement. Antaramian sought approximately $2.5 million, including approximately $236,000 for amounts paid or owed to seven fact witnesses’ professional firms. Approximately 75% of this amount was for payments to Burns & Levinson, three of whose attorneys were deposed by TPI and later testified at trial. TPI requested detailed billings, which reflect time spent on various items, including the following: traveling to and testifying at depositions and trial; reviewing documents and conferencing in advance of deposition and trial testimony; reviewing other correspondence and documents relating to TPI’s lawsuit, including in response to TPI’s requests for voluminous discovery; and assisting with things such as responding to interrogatories.
On certified question, the Florida Supreme Court initially observed that Florida Rule 4-3.4(b) “reflects a balancing between two competing concepts. On the one hand, there is the obvious concern about purchasing testimony and offering inducements to color testimony. That concern is noted in the comments to the rule which state: ‘Fair competition in the adversary system is secured by prohibitions against improperly influencing witnesses and the like.’ On the other hand, the rule’s third exception recognizes the value of a witness’s time and provides an incentive for witnesses to carry out their duty to assist in ‘the truth-seeking function of the trial process.’ The sole inquiry here is whether that third exception — which permits reasonably compensating a fact witness for preparing for, attending, or testifying at proceedings — permits reasonably compensating a fact witness for what the district court referred to as ‘assistance with case and discovery preparation’.”
Turning to the certified itself, the Court then stated that: “We agree with TPI that the question as certified by the Second District is overly broad and undefined. Indeed, permitting payments for any type of assistance with case and discovery preparation would not only be inconsistent with the rule’s plain language but could open the door to purchasing testimony under the pretext of such assistance and compromise the integrity of the fact-finding process — the very thing rule 4-3.4(b) is designed to prevent. We thus decline to broadly conclude that ‘assistance with case and discovery preparation’ is subsumed within ‘preparing for, attending, or testifying at proceedings.’ However, we also recognize — as this case demonstrates — that there is room for overlap between the two categories. We therefore also decline to adopt a view that effectively treats the two categories as mutually exclusive.
“We think the more appropriate inquiry is whether the witness’s assistance with case and discovery preparation is directly related to the witness ‘preparing for, attending, or testifying at proceedings.’ Although less than perfectly precise, viewing the payments through that narrower lens is consistent with the language of the rule and avoids prejudicing parties in highly complex cases such as this where they are dependent upon professionals. Indeed, not only was Antaramian required to defend himself, including against accusations of tax fraud, but it appears the professionals upon whom he was dependent also had to defend themselves against accusations of wrongdoing. One of Antaramian’s former trial attorneys testified at the fee hearing regarding the ‘very adversarial’ nature of the litigation, the ‘tons of documents’, and TPI’s ‘theory of the case … that everybody on Mr. Antaramian’s side of the transaction was a crook, was actually a thief and a liar.’ That testimony was consistent with that of others, including Antaramian’s longtime accountant as well as the Burns & Levinson attorney who was the principal architect of the settlement agreement. That Burns & Levinson attorney also testified regarding ‘a host of complicating factors’ in the case.
“It would be unfair and prejudicial to conclude that, beginning the moment TPI filed suit, Antaramian’s longtime professionals who had the necessary knowledge for him to begin to defend the suit, who were involved in the transaction that was the very subject of the suit, and whose own actions and character were seemingly in question, could not be reasonably compensated for any ‘assistance’ regarding complex matters about which they would later be called to testify. We conclude that the rule does not require such a result. But we reiterate that a fact witness’s ‘assistance’ must be directly related to the witness ‘preparing for, attending, or testifying at proceedings.’
“In reaching our conclusion, we recognize that the specifics of our holding are necessarily limited due to the uncertainties regarding the trial court’s cost award — namely, what payments were included in that unitemized award. Indeed, our discussion may very well prove academic. After all, a review of the invoices reveals many line items that on their face are not even properly categorized as ‘assistance with case and discovery preparation’ and instead fall squarely within ‘preparing for, attending, or testifying at proceedings’ and are unequivocally permitted by the rule. Indeed, those line items either expressly reference the witness’s preparation for deposition or trial, or they reference items such as the witness reviewing documents, participating in conferences with Antaramian’s lawyers, or attending to other matters that are related to the witness’s deposition or trial testimony.” See ABA Formal Op. 96-402 (1996) (Propriety of Payments to Occurrence Witnesses) (concluding that, subject to the law of the respective jurisdiction and provided that certain other requirements are met, Model Rule 3.4 of the Model Rules of Professional Conduct permits reasonably compensating a fact witness for ‘time spent in pretrial interviews’ and ‘time spent in reviewing and researching records that are germane to his or her testimony’); Florida Bar Staff Opinion 20542 (Dec. 11, 1997) (interpreting Rule Regulating the Florida Bar 4-3.4(b) as permitting two fact-witness lawyers to request reasonable compensation for ‘time spent by the firm in reviewing the files concerning the subject matter of the lawyers’ testimony’).”
Trial Practices v. Hahn Loeser & Parks, 260 So.3d 167 (Fla. 2018).
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