Date: Jun 2, 2026

SCR 20:3.4(b) Applied: No Contingent or Untethered Payments to Fact Witnesses; “Reasonable Lawyer” Vagueness Standard; No Good-Faith Exception

1. Introduction

Office of Lawyer Regulation v. Gary W. Thompson (2026 WI 18) is a Wisconsin attorney discipline decision addressing the boundary between permissible witness compensation and impermissible witness inducements under SCR 20:3.4(b). The Office of Lawyer Regulation (OLR) prosecuted Attorney Gary W. Thompson for offering money to a fact witness (J.T.) in connection with an arbitration arising from a commercial construction dispute. Thompson appealed a referee’s finding of misconduct and the recommended sanction of a public reprimand with full costs.

The central issues were: (1) whether SCR 20:3.4(b) is unconstitutionally vague as applied; (2) if not, whether Thompson’s payments—particularly a contingent $25,000 offer—violated the rule; and (3) the appropriate level of discipline and cost allocation given the posture and consequences (including the arbitrator’s dismissal of Thompson’s client’s claims after a sanctions motion).

2. Summary of the Opinion

The Wisconsin Supreme Court affirmed the referee’s factual findings (not clearly erroneous), held that SCR 20:3.4(b) is not unconstitutionally vague as applied, and concluded Thompson violated SCR 20:3.4(b) by offering prohibited inducements to a fact witness. The court emphasized:

A contingent payment to a fact witness tied to case success is long condemned as against public policy.
Payments to fact witnesses must be tethered to specific losses (reasonable expenses/time lost) and not carry the risk of influencing testimony.
Good faith or claimed misunderstanding of the rule is not a defense.
A public reprimand was warranted due to potential/actual injury (arbitration claims dismissed) and the need for general deterrence.
Full costs were imposed because Thompson chose to litigate extensively and was ultimately found to have committed misconduct.

3. Analysis

3.1 Precedents Cited

The opinion is notable for weaving together (a) discipline-law standards of review and sanction discretion, (b) due-process vagueness doctrine tailored to lawyer regulation, and (c) longstanding public-policy limits on paying fact witnesses.

A. Standards of review and sanction authority

In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5: The court reaffirmed that a referee’s factual findings are upheld unless “clearly erroneous,” while legal conclusions are reviewed de novo. This framing mattered because Thompson’s primary challenges required the court to accept the referee’s factual narrative while independently evaluating constitutional vagueness and rule application.
In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44: The court reiterated it may impose whatever sanction it deems appropriate regardless of the referee’s recommendation. This supported the court’s independent calibration of discipline (public reprimand) and costs (full).

B. Due process and vagueness in professional discipline

State ex rel. Hennekens v. City of River Falls Police & Fire Comm'n, 124 Wis. 2d 413, 420: Cited for the principle that vagueness doctrine is rooted in due process—requiring fair notice and proper standards for adjudication. The court used this as the constitutional starting point for Thompson’s as-applied challenge.
In re Disciplinary Proceedings Against Gamino, 2005 WI 168, ¶48: Confirmed that a responding lawyer is entitled to due process in discipline proceedings—supporting the legitimacy of vagueness review, while not altering the court’s conclusion that the rule gave adequate notice to a reasonable lawyer.
In re Disciplinary Proceedings Against Hupy, 2011 WI 38, ¶91: The court relied on Hupy to underscore that ethics rules are subject to vagueness scrutiny, but with a “less stringent” standard than criminal statutes.
Matter of Rabideau, 102 Wis. 2d 16: Used for two key propositions: (1) ethics codes cannot exhaustively enumerate all prohibited conduct (“fixed list” would be over/underinclusive), and (2) attorneys have “heightened awareness” and thus can conform conduct to necessarily broader standards.
Matter of Seraphim, 97 Wis. 2d 485: Cited to support the constitutionality of necessarily broad standards of professional conduct, reinforcing that breadth alone does not equal unconstitutional vagueness.
State v. Grandberry, 2 018 WI 2 9, ¶33: Provided the criminal-statute vagueness benchmark (“ordinary people” standard), which the court contrasted with its “reasonable lawyer” approach for ethics rules.
In re Disciplinary Proceedings Against Beaver, 181 Wis. 2d 12, 24: Served as Wisconsin authority for the “reasonable lawyer”/licensed-officer-of-the-court lens—i.e., whether the rule is understandable to a lawyer given professional context, application history, and interpretive sources.
Persuasive authorities illustrating the lawyer-focused vagueness standard: People v. Morley, In re Crossen, State ex rel. Nebraska State Bar Ass'n v. Kirshen, In re Holtzman, and Comm'n for Law. Discipline v. Benton. The court invoked these to show Wisconsin’s approach aligns with broad national consensus: disciplinary rules are judged for clarity as to lawyers, not the public.

C. Public policy against contingent or outcome-linked payments for testimony

Miller v. Anderson, 183 Wis. 163, 168: The core authority condemning agreements to procure testimony where compensation depends on the character of the testimony procured or on the result of the suit. This case supplied the court’s “long prohibited” foundation for treating Thompson’s $25,000 contingent promise as plainly improper.
Manufacturers' & Merchants' Inspection Bureau v. Everwear Hosiery Co., 152 Wis. 73: Cited by Miller as collecting cases; it reinforces the longstanding and widely accepted public-policy concern: such arrangements hold out inducements to fraud or perjury.

D. Ethics guidance on compensating fact witnesses

State Bar of Wis. Comm. on Pro. Ethics, Formal Op. No. E-88- 9 (1988): Used to support the court’s rule articulation that inducements exceeding actual out-of-pocket losses can support SCR 20:3.4(b) violations.
Wis. Ethics, Formal Op. E-89-17 (1989): Provided nuance: compensation for time lost preparing and testifying may be permissible if reasonable and not otherwise prohibited.
ABA Comm. on Ethics & Pro. Resp., Formal Op. 96-402 (1996): Reinforced that payment must be reasonable to avoid affecting testimony “even unintentionally,” supporting the court’s risk-based approach (influence risk is enough).

E. No “ignorance” or “good faith” defense in lawyer ethics

In re Disciplinary Proceedings Against Siderits, 2013 WI 2, ¶29: The court relied on Siderits to reject Thompson’s claimed misunderstanding as a defense, warning that allowing ignorance excuses would reward indifference to ethics rules.

F. Costs follow proven misconduct when the respondent drives them

In re Disciplinary Proceedings Against Ritland, 2021 WI 36, ¶43: Cited for the proposition that under SCR 22.24(1m), a lawyer found guilty who imposes costs on the disciplinary system should expect to pay them—particularly relevant where the respondent “litigated this case to the hilt.”

3.2 Legal Reasoning

A. The “reasonable lawyer” vagueness standard controls

The court framed Thompson’s due-process challenge as as-applied vagueness: whether SCR 20:3.4(b) gave fair notice that his conduct was prohibited. It held ethical rules are measured with less stringency than criminal statutes and assessed through the perspective of a “reasonable lawyer” informed by professional training, the “lore of the profession,” court precedent, and ethics opinions. Under that lens, SCR 20:3.4(b) (and its Comment [3]) provided sufficient notice. The court also underscored that the rule tracks ABA Model Rule 3.4(b) and noted the absence of judicial findings of unconstitutional vagueness for that language.

B. The contingent $25,000 promise was the paradigmatic prohibited inducement

The court treated the $25,000 offer—payable only if Thompson’s client prevailed—as falling squarely within the historic condemnation of outcome-linked compensation for testimony. Relying on Miller v. Anderson, it emphasized that contracts conditioning compensation on the result of the proceeding “have been uniformly condemned” due to inducements toward fraud or perjury. Under this reasoning, the contingent nature itself is a red flag: it aligns the witness’s financial interest with a party’s success.

Thompson attempted to recast the $25,000 as a “bonus owed” under an employment agreement, but the court deferred to the referee’s assessment that this explanation failed factually and legally (including that the contract was “terminated,” conditions for the bonus were unmet, and the computation was not contractually anchored). The key disciplinary point: labeling a payment “owed” does not neutralize its function as a litigation-contingent inducement when the entitlement is not established and the payment is offered to secure assistance/testimony.

C. The $2,000 and $5,000 offers were impermissible because they were not tied to particular losses

The court acknowledged that paying witness expenses is not per se improper, but emphasized the distinction drawn in Comment [3]: paying an “occurrence witness” a “fee for testifying” is improper. It then articulated a governing operational rule informed by Wisconsin and ABA ethics opinions: a fact witness may be compensated only for reasonable, particularized losses (expenses and time lost in preparation/testimony) in a manner that does not risk influencing the substance of testimony.

Applying that standard, the court found Thompson’s $2,000 and $5,000 offers unethical because they were not tethered to J.T.’s actual losses. They were speculative, forward-looking estimates generated by the client (a non-lawyer) about how much time might be needed and what a “market rate” might be, with Thompson acting as a conduit rather than a professional check on reasonableness. The court highlighted record facts that underscored the inducement risk—most notably that J.T. himself viewed the figures as “excessive.”

D. No good-faith exception

Even assuming Thompson sincerely believed his conduct was permissible and did not intend to shape testimony, the court held that is not a defense. The rule protects the integrity of the evidentiary process by preventing arrangements that create undue influence incentives—intent is not the sole measure; the structure and reasonableness of the payment matter.

E. Sanction selection: deterrence and actual harm supported a public reprimand

The court positioned a public reprimand as a “middle ground.” It rejected a private reprimand due to the degree of harm/potential harm, including Thompson’s testimony that the arbitrator dismissed his client’s claims based on a sanctions motion triggered by these offers. It declined a suspension as excessive, emphasizing mitigating factors: one count, no prior discipline over a long career, and cooperation. A public reprimand also served an express educational/deterrent function, particularly because Thompson claimed uncertainty about SCR 20:3.4(b)’s meaning.

F. Costs: litigating aggressively shifts the financial burden when misconduct is proven

The court treated the high costs as a predictable consequence of Thompson’s chosen litigation strategy (motion practice, extensive discovery, appeal through oral argument). Citing In re Disciplinary Proceedings Against Ritland, it held that once misconduct is found, the lawyer should expect to pay the costs imposed on the disciplinary system. The court rejected arguments that costs should be reduced because the case was “instructive” or because Thompson would have accepted a private reprimand if offered.

3.3 Impact

This decision clarifies (and effectively operationalizes) SCR 20:3.4(b) for Wisconsin practitioners in several durable ways:

Bright-line warning against contingent witness payments: Any offer to a fact witness conditioned on case success is treated as inherently suspect and historically prohibited, regardless of how the payment is labeled.
“Tethering” requirement for permissible compensation: Payments must be anchored to specific, reasonable losses (documentable time lost/expenses), not to speculative estimates, not to large flat sums untied to actual impact, and not to amounts that appear “excessive.”
Professional responsibility is non-delegable: A lawyer cannot safely serve as a conduit for a client-generated payment proposal to a witness; the lawyer must independently evaluate permissibility and reasonableness.
No safe harbor in good faith: Claimed misunderstanding does not immunize conduct; lawyers are expected to consult the rule, its comments, and the ethics/precedent ecosystem interpreting it.
Cost consequences for “scorched-earth” defense: The court reinforces that aggressive litigation choices in discipline matters can translate into full cost assessments when misconduct is ultimately established.

Practically, the opinion is likely to be cited in future Wisconsin discipline matters involving witness payments and in lawyer counseling contexts as a cautionary exemplar of how quickly “help with the case” payments can become prohibited inducements—particularly when the witness is central, the amounts are substantial, or payment is linked to outcome.

4. Complex Concepts Simplified

SCR 20:3.4(b): A professional rule prohibiting lawyers from falsifying evidence, assisting false testimony, or offering witness inducements that are illegal. Here, the focus is on payments that the law (including common-law public policy and ethics interpretations) treats as improper.
As-applied vagueness: A constitutional claim that a rule is too unclear when applied to the specific facts at hand (not necessarily unclear in all applications). The court held SCR 20:3.4(b) was clear enough for a reasonable lawyer in Thompson’s situation.
“Reasonable lawyer” standard (vs. “ordinary person”): For ethics rules, courts ask whether a licensed lawyer—aware of professional context, case law, and ethics guidance—would understand the rule’s prohibition. This makes it harder to prove vagueness than in the criminal context.
Occurrence (fact) witness vs. expert witness: A fact witness testifies about what they saw/did/know from events. The law is much more restrictive about paying fact witnesses: you may reimburse reasonable expenses and reasonable time lost, but you generally may not pay them “for their testimony,” especially not in ways that could influence content.
Contingent payment: A payment promised only if a party wins (or depending on the outcome). The court treated this as especially problematic because it aligns the witness’s financial interest with one side’s success.
Public reprimand vs. private reprimand: A private reprimand is non-public discipline typically reserved for minimal harm. A public reprimand is published and intended to deter and educate, used when harm or risk is more significant.
Costs in discipline proceedings: The expenses of prosecuting the discipline case. If a lawyer is found to have committed misconduct, Wisconsin practice generally expects the lawyer to pay the costs, especially where the lawyer’s litigation decisions substantially increased them.

5. Conclusion

Office of Lawyer Regulation v. Gary W. Thompson reinforces and clarifies Wisconsin’s enforcement of SCR 20:3.4(b): lawyers may not offer outcome-linked money to fact witnesses, and even non-contingent payments must be reasonably tied to actual, specific losses to avoid creating incentives that could influence testimony. The court also cements the “reasonable lawyer” framework for vagueness challenges to ethics rules and rejects good faith as a defense to improper witness inducements. Finally, the decision underscores that extensive, unsuccessful litigation in discipline proceedings can justify full cost shifting. In the broader professional-responsibility landscape, the opinion functions as a practical compliance roadmap—and a caution—on how to handle witness compensation without undermining the integrity of adjudicative proceedings.