FLORIDA BAR ETHICS OPINION
Originally issued January 8, 1968
Revised April 23, 1993
Advisory ethics opinions are not binding.
A member of The Florida Bar who subpoenaed a physician to offer expert testimony in a
personal injury case and who did not advise the physician until subsequent to his testimony that
he considered the expert witness fee to be an obligation of his client should advance such
reasonable witness fee as may be assessed by the court.
F.S. § 92.231
In the course of the presentation of a plaintiff’s personal injury case, a member of The
Florida Bar subpoenaed a physician to offer expert testimony, such subpoena being accompanied
by the standard mileage and per diem fee as prescribed in the Florida Statutes. Before trial,
counsel had advised the plaintiff that the expenses of the trial, including expert witness fees,
would be entirely his obligation. Although no agreement was made by the attorney to
compensate the physician for his expert witness fee, apparently the attorney did not advise the
physician until subsequent to his testimony that he considered the expense an obligation of the
client. Following the rendition of a verdict for the defendant, the physician has requested that his
compensation as an expert witness be paid by the attorney. We are requested to advise the lawyer
concerning his professional responsibility with reference to this request.
We emphasize at the outset that to the extent this inquiry involves the law of express or
implied contracts it is one beyond our jurisdiction. A comprehensive annotation setting forth
cases expressing divided views on the subject is found in 15 ALR 3rd 531.
We deal solely with the ethical aspect of the matter. We further assume at the outset that
there is no custom in the community or county involved wherein it was or should have been
understood by the physician that he was to look solely to the client, and further that there is no
inter-professional code between the county bar association and the county medical society,
which in effect would be a written embodiment of the custom governing attorneys and
physicians in such circumstances.
With these assumptions, we note the provisions of Section 92.231, Florida Statutes,
provide in part as follows:
(2) Any expert or skilled witness who shall have testified in any cause shall
be allowed a witness fee including the cost of any exhibits used by such witness
in the amount of $10 per hour or such amount as the trial judge may deem
reasonable, and the same shall be taxed as costs.
In view of the fact that the physician who was entitled to rely upon this statute appeared
and offered expert testimony, and in the absence of a disclaimer by the attorney prior to the
testimony, we think that it would be unprofessional for the lawyer to decline under these
particular circumstances to advance such reasonable fee as may be assessed by the court. It is to
be noted that while ordinarily costs are taxed only to a successful party, the statute in question is
not limited to experts testifying for the successful party.