concurring in part and dissenting in part.
¶75 I concur with the majority’s conclusion that the trial court erred in its ruling on defendant’s motion in limine regarding the testimony of witness Sumner. I agree that Sumner was a contingent fee witness, that his role as a contingent fee witness was known to and acquiesced in by plaintiffs counsel, and that therefore offering his testimony runs afoul of Colo. RPC 3.4(b).
¶ 76 However, given the majority’s conclusion that counsel’s conduct was “contrary to” Colo. RPC 3.4(b), I disagree that a remand is necessary for the trial court to consider an appropriate sanction. Under the circumstances present here, the testimony should be stricken, and a new trial held. Otherwise, the majority’s expression of disapproval of contingent fee witnesses has no bite.
¶ 77 I perceive that the majority favors remand for essentially two reasons. First, it eschews a per se exclusionary rule because of evidentiary concerns under CRE 601 and because some courts have held that the corrupting effect of contingent fee witnesses involves only the witness’s credibility and weight to be given to his or her testimony, which can be addressed by cross-examination for bias. Second, it relies on the principle from our case law that conflicts with ethical rules that occur in litigation should first be addressed in the trial court.
¶ 78 However, as described below, numerous courts have also found that payment of a witness, whether on a contingency or directly, presents a more serious problem than witness credibility alone and have precluded or stricken paid witnesses. And, although some ethical issues affecting the course of litigation should first be addressed in the trial court, I do not believe that the remedy for the unethical presentation of a paid witness is one of them.
¶ 79 The majority acknowledges that courts must consider ethical violations within the context of the litigation where a “potential ethical violation threatens to prejudice the fairness of the proceedings.” Liebnow v. Boston Enterps. Inc., 2013 CO 8, ¶ 11, 296 P.3d 108, 113. I agree with the majority that “such rulings generally involve discretion derived from the trial court’s ‘inherent power to ensure the integrity of the process and fairness for the parties.’ ” Id. at ¶ 12, 296 P.3d at 113. Of course, I am also mindful of the additional language in Liebnow that “it is within the exclusive province of the trial court to determine whether a violation of the rules regarding conflict harms the fairness of the proceedings.” Id. at ¶ 13, 296 P.3d at 113.
¶ 80-In this case, however, the ethical issue does not arise, as it did in Liebnow, from a potential conflict of interest by counsel for one of the parties, where the prejudice might not have been apparent or might not have actually been present. Nor would a disciplinary proceeding, if brought, rectify the unfairness which the conduct had on the trial because the conflict with the ethical rule goes to the very heart of the evidentiary process under which this ease proceeded to trial. Therefore,, because I b.elieve that presenting *19a contingent fee witness necessarily goes to the integrity and fairness of the trial, I conclude that a trial verdict -that results from the testimony of such a witness is, by definition, unfair and improper and must be reversed. A remand for the trial court to consider the prejudice is not necessary.
¶81 To perceive that contingent fee witnesses necessarily impact the fairness of the trial, we need only survey the cases, in addition to those cited by the majority in footnote 4, that discuss why paying a fee (other than expenses) to any fact witness for testifying is prohibited.
¶82 As the Colorado Supreme Court explained long ago, “[I]t is both illegal and against public policy to pay or tender something of value to a witness in return for his testimony.” People v. Belfor, 197 Colo. 223, 226, 591 P.2d 585, 587 (1979).
¶ 83 In Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Ass’n, 865 F.Supp. 1516, 1525 (S.D.Fla.1994), the trial court barred the testimony of witnesses compensated by an insurance company, quoting from The Florida Bar v. Jackson, 490 So.2d 935, 936 (Fla.1986) (Ehrlich, J., concurring in part and dissenting in part):
The very heart, of the judicial system lies in the integrity of the participants.... Justice must not be bought or sold. Attorneys have a solemn'responsibility to assure that not even the taint of impropriety exists as to the procurement of testimony before courts of justice.
¶ 84 Specifically addressing Florida’s professional conduct rule analogous to Colo. RPC 3.4, the court held that the rule clearly prohibits
a lawyer from paying or offering to pay money or other rewards to witnesses in return for their testimony, be it truthful or not, because it violates the integrity of the justice system and undermines the proper administration of justice. Quite simply, a witness has the solemn' and fundamental duty to tell the truth. He. or she should not be paid a fee for, doing so.
Golden Door Jewelry, 865 F.Supp. at 1526.
¶ 85 Similarly, in Accrued Financial Services, Inc. v. Prime Retail, Inc., 2000 WL 976800 (D. Md. No. CIV.JFM-99-2573, June 19, 2000) (unpublished order), aff'd, 298 F.3d 291 (4th Cir.2002), the court concluded that payment of witnesses violates the Maryland Rules of Professional Conduct and precluded paid witnesses, stating, “Financial arrangements that provide incentives for the falsification or exaggeration of testimony threaten the very integrity of the judicial process, which depends upon the truthfulness of the witnesses.” See also Farmer v. Ramsay, 159 F.Supp.2d 873, 883 (D.Md.2001) (“[Witness contingency fee agreements affirmatively violate the fundamental policy of Maryland and the United States.”), aff'd, 43 Fed.Appx. 547 (4th Cir.2002).
¶ 86 In Golden Door Jewelry, the court also determined that it was “of no moment” that the insurance company client rather than the lawyer was the actual source of the payment. 865 F.Supp. at 1526. As the majority notes here, the lawyer for plaintiff was well aware of, and acquiesced in, the contingent fee arrangement with Sumner.
¶ 87 Moreover, it matters not whether the paid witness is specifically directed to testify truthfully. See In re Robinson, 151 A.D. 589, 136 N.Y.S. 548, 556 (1912) (“[T]he payment of a sum of money to a witness to testify in a particular way, the payment of money to prevent a witness’s attendance at a trial, the payment of money to a witness to make him ‘sympathetic’ with the party expecting to call him ..’. [constitute] payments which are absolutely indefensible.”). And, “[t]he payment of a sum of money to a witness to ‘tell the truth’ is as clearly subversive of the proper administration of justice as to pay him to testify to what is not true.” Id.
¶ 88 Nor does it matter if the payment is to be delivered in the future. In Wagner v. Lehman Bros. Kuhn Loeb Inc., 646 F.Supp. 643, 646 (N.D.Ill.1986), the court disqualified an attorney who acquiesced in the promise of payment of a fee to a witness. Although no money had yet changed hands, the court concluded that
the effect [of the promise of payment] on the potential witness is the same: he is induced by the promise of potential payment to give testimony he otherwise might *20not have given. Moreover, the effect on the integrity of the judicial system is the same: the witness’s testimony is inherently unreliable because of the promise of payment.
¶ 89 Whether cast in terms of the integrity of the justice system or the proper administration of justice, payment of a witness, particularly on a contingent fee basis where the payment depends on the outcome of the trial, necessarily undermines the fairness of the trial and prejudices the system of justice. Cross-examination or jury instructions that effectively elicit the bias of the paid witness may level the playing field in some instances, but they cannot undo the harm to the integrity of the justice system from the perspective of the public, the jurors, or the litigants who, after hearing of the paid witness, may perceive that testimony can be bought and sold.
¶ 90 Precluding the admission of evidence obtained contrary to ethical rules is not a novel remedy. See Midwest Motor Sports, Inc. v. Arctic Cat Sales, Inc., 144 F.Supp.2d 1147, 1159-60 (D.S.D.2001) (barring admission of evidence obtained in violation of Rules of Professional Conduct), aff'd, 347 F.3d 693 (8th Cir.2003).
¶ 91 Nor is reversing a decision based on evidence obtained in contravention of rules against contingent fee witnesses unprecedented in Colorado. As noted by the majority, in City & Cnty. of Denver v. Board of Assessment Appeals, 947 P.2d 1373 (Colo.1997), the supreme court vacated a valuation determination because the expert appraisers had contingent fee agreements with the taxpayer clients. Although the case turned on the statutory violation referenced by the majority, the supreme court noted that that the payment of contingent fees to experts also conflicted with the provisions of Colo. RPC 3.4. Id. at 1379. As the court noted, where the payment of the expert is contingent, “the witness’ own interest will become intensified, and the reliability of the testimony and impartiality of the expert’s position will be significantly weakened.” Id. The same rationale applies to a fact witness paid on a contingent basis.
¶ 92 In City & Cnty. of Denver, the supreme court did not remand the case for an evaluation of the prejudice. Instead, it imposed the remedy of reversal and precluded the contingent fee witness, stating:
Such contingent fee agreements cannot be the basis for procuring appraiser appearances or expert testimony under the 1996 version of the statute. The appearances here were unlawful and the BAA should not have allowed them.
Id. at 1381. Although striking the contingent expert’s testimony necessitated a new proceeding, the supreme court determined that a new hearing was the only appropriate remedy.
¶ 93 Applying the same analysis here, I believe the appropriate remedy is to vacate the judgment and remand the case for a new trial.