Could lawyers who would testify about a copied will also serve as trial counsel in its probate case?

Plain-English summary

A firm petitioned to admit a copy of a will and expected two lawyers from the firm to testify about necessary facts at trial.

The opinion said those two lawyers should not act as trial counsel under Rule 4-3.7. Another member of the firm could serve as trial counsel.

Currency note

This opinion was issued in 1998, before Missouri’s 2007 revisions to the Rules of Professional Conduct. Later amendments or opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it. The official Rule 4-1.9 and 4-1.10 reference notes identify July 1, 2007 amendments.

Common questions

Q: Could the witness lawyers try the matter?

A: No. The opinion said they should not.

Q: Could another lawyer from the same firm try it?

A: Yes. The answer expressly permitted that.

Background and rules framework

The answer expressly relied on Rule 4-3.7.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-3.7

See also

• Missouri Informal Op. 990206: Witness Lawyer on Appeal

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/980078/

• Rule revision reference: Missouri Informal Opinion 20030007

Original opinion text

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

QUESTION: Attorney´s firm has filed a petition to have a copy of a will admitted to probate. The will was prepared many years ago by an attorney who has now ceased practicing law. Some members of Attorney´s firm were formerly associated with that attorney and all of the former attorney´s estate planning files were transferred to Attorney´s firm. At trial, Attorney´s firm will need to produce evidence on two points through the personal testimony of Attorney or another member of Attorney´s firm. May an attorney with Attorney´s firm act as trial counsel in this proceeding? Should Attorney or the attorney who acts as a witness avoid acting as trial counsel?
ANSWER: Based upon the information Attorney has provided, the two attorneys who will be witnesses should not serve as trial counsel pursuant to Rule 4–3.7. Another member of the firm may serve as trial counsel.