When the lawyer who drafted a will may have to testify in the will contest, can his partner handle the executor's representation in that contest?

Plain-English summary

The inquiring lawyer had drafted a will for a testator in 1960 and a second will in 1963 that revoked the first; both named the same executor. The lawyer was retained to represent that executor, and after the 1963 will omitted certain legatees named in the earlier will, a will contest followed. The lawyer was not an attesting witness but expected he might be called to testify on matters beyond merely formal ones, and the executor wanted him to act regardless of which will was admitted. The question was whether a partner of the inquirer could file the formal pleadings and represent the executor's interests in the proceedings.

The committee noted the executor was essentially disinterested between the competing legatees, and that the estate's size, which a county judge might later use to compute the executor's attorney's fee, would not be significantly affected by the contest. Citing its Opinion 64-39 and ABA Opinion 220, the committee said Canon 19 should not be read to automatically disqualify the lawyer's partners from conducting the proceeding. Because it had already approved counsel continuing to represent a disinterested executor with knowledge he might be called to testify, the committee concluded that the inquirer's plan to use his partner, which it called a wise and appropriate precaution, was proper and that neither he nor his firm needed to withdraw from handling the estate.

Currency note

This opinion was issued in November 1966, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 19 on a lawyer testifying for a client. The lawyer-as-witness rule, and when the disqualification is imputed to a partner, are now addressed by Rule 4-3.7 of the Rules Regulating The Florida Bar (Model Rule 3.7). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Did the lawyer's possible testimony disqualify him from the matter entirely?

A: No. The committee, following its Opinion 64-39, said the lawyer for a disinterested executor need not withdraw merely because he might be called to testify by a contestant.

Q: Could the lawyer's partner conduct the will contest?

A: Yes. The committee, citing ABA Opinion 220, said Canon 19 should not be interpreted to automatically disqualify the lawyer's partners, and it called using the partner a wise and appropriate precaution.

Q: Why did it matter that the executor was disinterested?

A: The committee stressed the executor was essentially neutral between the competing legatees and that the estate's size would not be significantly affected by the contest, which supported letting the firm continue to act.

Background and rules framework

The opinion applied the former Canon 19, which directed a lawyer who is a witness for the client, except on formal matters such as attestation, to leave the trial to other counsel. That subject, and the question of imputing the witness lawyer's disqualification to partners, is now addressed by Rule 4-3.7 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 3.7. The committee read Canon 19 with its earlier Opinion 64-39 and ABA Opinion 220.

Citations and references

Rules of Professional Conduct:

• Canon 19 [Canons of Professional Ethics; see current Rule 4-3.7]

Other opinions cited:

• Florida Opinion 64-39 (executor's counsel need not withdraw though he may testify)
• ABA Opinion 220 (Canon 19 does not automatically disqualify partners)

See also

• FL Bar Ethics Op. 66-76: Lawyer-Witness in a 2nd Case
• FL Bar Ethics Op. 68-19: Fee Split With a Witness

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-66-63/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-66-63.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 66-63
November 7, 1966
Advisory ethics opinions are not binding.
An attorney who represented a testator in the drafting of two earlier wills, both of which named the same executor, and who now represents the executor in probate proceedings, may permit his partner to file pleadings on behalf of the executor in connection with a will contest and to represent such interests as the executor may have as a disinterested party, even though the attorney may be called upon to testify as to other than formal matters at the trial of the will contest.
Canon: 19
Opinions: 64-39, ABA 220
Chairman MacDonald stated the opinion of the committee:
A member of The Florida Bar presents for our consideration the continually recurring question of the responsibility of a lawyer under Canon 19.
Canon 19 provides as follows:
When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.
The inquiring attorney represented a testator in the drafting of a will in 1960, and the drafting of a subsequent will in 1963, having the effect of revoking the earlier will. The same executor was named in both wills, and the inquirer has now been retained to represent this executor. The 1963 will omitted certain legatees who had been named in the earlier will. Predictably a will contest has ensued.
The inquiring attorney was not an attesting witness, but is of the belief that during the trial of the will contest he may be called upon to testify, and that this testimony might extend beyond formal matters. It is his belief that he will be requested by the executor to act regardless of which will is ultimately admitted to probate.
We are asked whether it would be permissible for a partner of the inquirer to file formal pleadings on behalf of the executor, and to represent such interests as it may have in the proceedings. It is clear that the executor is essentially disinterested between the competing legatees. Moreover, it is clear that the size of the estate (which might in the future be utilized by the county judge as one standard to be utilized in computation of a fee for the attorneys for the executor) will not be significantly affected by this will contest.
This Committee had substantially the same problem before it in Opinion 64-39, and we there held that the attorney for the executor need not withdraw from the representation of the estate. Indeed, it was pointed out that if Canon 19 was interpreted to require such withdrawal, a contestant to a will would be put in a position of being able to disqualify the attorney for the executor, and thus indirectly defeat the desires of the testator.
In this instance, the inquirer actually proposed to leave the handling of the representation of the executor, at least during the pendency of the will contest, to one of his partners. The American Bar Association Committee on Professional Ethics in its Opinion 220 has made it clear that Canon 19 should not be interpreted to automatically disqualify not only the lawyer, but his partners from the conducting of such a proceeding. We need not speculate as to the extent to which we would adhere to Opinion 220, because, as noted, in our Opinion 64-39 we have previously approved counsel continuing to represent the executor, with the knowledge that he might be called upon to testify by a contestant, so long as the executor was otherwise disinterested. Hence, the present course of the inquirer in utilizing his partner, which we regard as a wise and appropriate precaution, only reinforces our opinion that his proposed course of conduct is proper and that neither he nor his firm need withdraw from the handling of the estate for the executor.