Leonard Charles v. 1170 Apartment Corp. et. als.
The New Jersey Court Rules do not specifically define whether a professional who is subpoenaed to testify at a deposition is entitled to be compensated for the time spent at the deposition. In the matter of Leonard Charles v. 1170 Apartment Corp. et. als., the New Jersey Apellate Division recently dealt with this issue. This case involved an attorney who was subpoenaed to testify at a deposition involving a former client. The attorney was no longer involved in the case and had no interest in the outcome. The attorney requested that he be compensated at his usual hourly rate and the plaintiff that subpoenaed him refused to pay him.
New Jersey Court Rule 4:14-7(b)(1) provides that a subpoened witness shall be reimbursed for the “out-of-pocket” expenses and loss of pay incurred in attending the deposition. The plaintiff in the Charles case argued that the subpoenaed attorney should not be compensated as the Rule was only intended to protect individuals such as hourly employees. The plaintiff asserted that the Rule was not intended to cover professionals. The Appellate Division disagreed and held that a literal reading of the Rule would defeat the underlying intent. The Court noted that the overwhelming purpose of the Rule was to provide compensation to individuals who are compelled to appear at a deposition in a controversy in which they have no stake in the outcome. The Court went on to hold that the term “loss of pay” includes an actual loss of income, as in the case of a salaried employee, or in the case of a professional, loss of billable time. It does not matter whether the professional is a member of a firm or is a single practitioner.
The Court concluded by quoting President Lincoln and noting that “a lawyer’s time and advice are his (or her) stock in trade.” This opinion is extremely helpful to all involved as it resolves as issue that has caused uncertainty where none should exist.
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