Attorney reprimanded over witness payments

A Milwaukee attorney was publicly reprimanded for offering improper financial incentives to a witness, violating ethical rules, after a disciplinary proceeding and appeal.

Gary W. Thompson was reprimanded following misconduct related to witness inducements in a construction dispute. He has practiced law in Milwaukee since 1988 with no prior disciplinary history.

The Office of Lawyer Regulation (OLR) charged Thompson with violating SCR 20:3.4(b).

The referee found Thompson guilty of offering inducements to a witness, which is prohibited by law. The referee recommended a public reprimand and full costs, totaling $23,209.42. Thompson appealed, arguing the rule was vague, his conduct was lawful, and that discipline should be less severe.

The Wisconsin Supreme Court upheld the findings and the violation, rejecting the arguments. The court imposed a public reprimand and ordered Thompson to pay full costs within 60 days.

The dispute involved a subcontractor’s work being behind schedule, leading to termination and subsequent litigation involving a potential bonus to a key witness. The subcontractor’s owner, I.G., told an employee, J.T., he could keep his job if he took a 50% pay cut. J.T. declined and left. He later received unemployment benefits over the company’s opposition.

In 2021, the subcontractor sued the general contractor with the case referred to arbitration. Thomas, representing the subcontractor, contacted J.T. to help as a witness. He offered J.T. $2,000, $5,000 and $25,000 for his help. Those figures came from I.G., with the $25,000 figure based on J.T.’s 2017 employment agreement and a rough estimate of a bonus.

J.T. declined to help.

While Thompson believed $25,000 was owed under the employment contract, the referee found that was not accurate. The offers to J.T. were deemed improper inducements, especially the contingent $25,000 offer conditioned on winning the case.

The court analyzed whether Thompson’s conduct violated SCR 20:3.4(b) and if the rule was unconstitutionally vague. SCR 20:3.4(b) prohibits offering inducements to witnesses that are illegal. The court found the rule clear and understandable to a reasonable lawyer. Thompson’s $25,000 contingent offer was clearly prohibited, as it resembled a bribe. The offers of $2,000 and $5,000 were also unethical because they were not tied to actual expenses and could influence testimony.

“Payments to a fact witness that are not tied to particular losses incurred by the witness—i.e., payments that are out of proportion to expenses, or to the time required of the witness for the matter, or to a reasonable hourly rate for the witness—all carry the unacceptable risk of influencing the witness’s testimony and are therefore prohibited,” the court wrote.

The court rejected Thompson’s argument that he believed his conduct was lawful, emphasizing no good-faith exception exists. The court noted the misconduct led to the dismissal of the arbitration claims, causing potential harm.

The court decided on a public reprimand, considering the severity of misconduct, lack of prior discipline and cooperation. In addition, public discipline could help deter similar conduct.

Thompson was also ordered to pay the cost of the proceedings — $23,209.42.