Can a Mississippi lawyer who drafted a client's will keep representing the executrix in a will contest where the lawyer may be called as a witness?

Plain-English summary

The Committee addressed a lawyer (Attorney A) who had represented a testator in a contested divorce and related matters and then drafted the testator's will. After the testator's death, Attorney A began estate proceedings for the executrix, who was the testator's sister and sole beneficiary. The testator's son contested the will. Attorney A conferred with the executrix and they determined there was no substantial conflict between his testimony and hers, but his partner (Attorney B) took over the will contest while Attorney A handled estate administration not related to the contest. The question was whether Attorney A may continue in the will contest and whether Attorney B may represent the executrix in it.

The opinion applied Rule 3.7, under which a lawyer who is likely to be a necessary witness shall not act as advocate at trial except where the testimony relates to an uncontested issue, relates to the nature and value of legal services, or where disqualification would work substantial hardship on the client. Rule 3.7(b) permits a lawyer to act as advocate even though another lawyer in the firm is likely to be called as a witness, unless precluded by Rules 1.7 and 1.9. Following Opinion No. 122 (September 5, 1986), the opinion noted a lawyer may continue when it is obvious he or a firm lawyer will be a witness unless the testimony may be prejudicial to the client.

The opinion explained that Rule 3.7 addresses two concerns, prejudice to the opposing party and conflict between lawyer and client, and that paragraph (a)(3) requires a balancing of the client's and the opposing party's interests, with the comment indicating that continued representation is proper where there is no substantial conflict between the testimony of the client and that of the lawyer. The opinion concluded there was no ethical prohibition on Attorney B continuing to represent the executrix, and that Attorney A, the testator's long-time lawyer with no conflict between his testimony and the client's, may continue active representation if his withdrawal would work substantial hardship on the client.

In practice

Under this opinion, a Mississippi lawyer who drafted a will and would be a possible witness may remain in the will contest when his testimony does not substantially conflict with the client's and his withdrawal would cause the client substantial hardship (Rule 3.7(a)(3)). The opinion holds that a partner of that lawyer may act as advocate in the same contest unless precluded by the conflict rules (Rule 3.7(b), read with Rules 1.7 and 1.9).

Common questions

Q: Can the lawyer who drafted a will stay on as advocate in the will contest?

A: The opinion concluded he may, under Rule 3.7(a)(3), where there is no substantial conflict between his testimony and the client's and disqualification would work substantial hardship on the client.

Q: Can the drafting lawyer's law partner handle the will contest instead?

A: Per the opinion, yes; Rule 3.7(b) lets a lawyer act as advocate even though another lawyer in the firm is likely to be a witness, unless precluded by Rules 1.7 and 1.9, and the Committee found no such preclusion on these facts.

Q: What makes a lawyer-witness's continued representation improper?

A: The opinion, applying Rule 3.7 and its comment, ties the analysis to prejudice to the opposing party and conflict between lawyer and client; continued representation is proper where there is no substantial conflict between the lawyer's and the client's testimony.

Background and rules framework

The opinion interprets Mississippi Rule of Professional Conduct 3.7 (lawyer as witness), read together with the conflict rules 1.7 (current-client conflicts) and 1.9 (former-client conflicts), which track the corresponding Model Rules. The balancing the opinion describes comes from Rule 3.7(a)(3) and the rule's comment.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 3.7(a), (b) (lawyer as witness) (cf. Model Rule 3.7)
• MRPC 1.7 (current-client conflicts) (cf. Model Rule 1.7)
• MRPC 1.9 (duties to former clients) (cf. Model Rule 1.9)

Other opinions cited:

• Mississippi Bar Opinion No. 122 (Sept. 5, 1986): continuing representation when the lawyer or a firm lawyer is likely to be a witness.

See also

• MS Bar Ethics Op. 242: Conflicts in Arbitration

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/195/
• Original PDF: https://www.msbar.org/media/1056/et_op_195-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 195

OF THE MISSISSIPPI BAR

RENDERED December 06, 1991

AMENDED April 06, 2013

LAWYER AS WITNESS - A lawyer who drafted a will for a long-time client and subsequently represents the Executrix may continue as attorney in a will contest, where he may be a witness, when there is no substantial conflict in the Attorney and client's testimony and the Attorney's withdrawal would work a substantial hardship to the client.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion on the following facts:

Attorney A has represented a Testator previously in a contested divorce and in other related matters throughout the two years immediately preceding his preparing the Testator's Will. Immediately after the Testator's death, Attorney A began estate proceedings on behalf of the Executrix, the sister and sole beneficiary of the Testator. Testator's son has contested the Will on various grounds, and Attorney A conferred with the Executrix and they determined that there was no substantial conflict between the Attorney's testimony and that of the Executrix-client. However, Attorney B, who is the partner of Attorney A, assumed representation of Executrix in the Will contest, and Attorney A only represented Executrix in matters involving administration of the estate not related to the Will contest. The question presented is whether Attorney A may continue to represent the Executrix in the Will contest, and also whether Attorney B would be able to ethically represent the Executrix in the matter.

Opinion No. 122 of The Mississippi Bar rendered September 5, 1986, answered a similar question as the one presented here by stating that a lawyer representing a client in pending litigation could continue representation if he learned that it was obvious that he or a lawyer in his firm would be called as a witness unless it was apparent that the testimony is or may be prejudicial to the client. The question presented here would fall under Rule 3.7 of the Mississippi Rules of Professional Conduct which provides as follows:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of the legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 and Rule 1.9.

Rule 3.7 recognizes that combining the roles of advocate and witness present the possibility of two problems: prejudice to the opposing party and conflict of interest between the lawyer and client. The Comment to Rule 3.7 indicates that Paragraph (a)(3) recognizes that a balancing is required between the interests of the client and those of the opposing party, and that whether the opposing party is like to suffer prejudice would depend upon various factors and the facts in each situation; and even if there is a risk of prejudice, the Attorney should look at the effect of his disqualification upon his client. The Comment further states that if there is no substantial conflict between the testimony of the client and that of the lawyer, that the continued representation would be proper.

Accordingly, based upon the facts presented, the Committee is of the opinion that, under Rule 3.7 and its Comment, there would be no ethical prohibition for Lawyer B to continue to represent the Executrix in the Will contest. Furthermore, Lawyer A had been the long-time Attorney for the deceased, and there is no conflict between Attorney A's testimony and that of the client. Lawyer A may continue active representation if his withdrawal will work substantial hardship to the client.