Can a lawyer represent clients in a suit to set aside deeds he drafted when his firm's secretary, who notarized the deeds, will be a witness?

Plain-English summary

Over a 10-year period, Attorney A drafted eight deeds by which a widow conveyed land to neighbors Y and Z; the attorney's secretary notarized six of them, and on two occasions Attorney A went with her to the grantor's home to explain the instruments. The grantees, not the grantor, retained and paid Attorney A to draft the deeds. After the grantor died, three of her grandchildren sued to set aside all eight deeds for lack of mental capacity and undue influence. About 50 witnesses had been interviewed to refute the allegations. Y and Z wanted Attorney A to defend them; the secretary who notarized the deeds would probably be called as a witness, and Attorney A thought it very unlikely the plaintiffs would call him.

The opinion concluded that Attorney A may represent Y and Z under these circumstances. Rule 5.2 prohibits a lawyer from accepting employment in most instances where he knows or it is obvious that he or another lawyer in his firm ought to be called as a witness, but neither Rule 5.2 nor any other rule prohibits representation merely because a firm employee will probably be a witness. The comment ties the rule's justification to the conflict between the dual roles of advocate and witness, a conflict that does not exist for the secretary, who does not appear as advocate. The prohibition applies only if the lawyer "knows or it is obvious that he or a lawyer in his firm ought to be called as a witness" (Rule 5.2(a)). Here it appeared highly unlikely Attorney A would be called, given the numerous other witnesses, and his belief that plaintiffs would not call him appeared reasonable. If it later develops that he will or should be a witness, he must then govern his conduct by Rule 5.2(b) or (c).

Currency note

This opinion was issued in 1987, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct (the bar's editor's note directs readers to Rule 3.7 of the Revised Rules). The provision it applies (Rule 5.2 on the lawyer as witness) has since been renumbered and revised (the corresponding Model Rule is 3.7). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer represent a client when a firm secretary will be a witness?

A: Yes. The opinion concluded that the advocate-witness rule reaches only the lawyer or another lawyer in the firm, not a nonlawyer secretary who will testify (Rule 5.2).

Q: Why doesn't the secretary's testimony disqualify the lawyer?

A: The opinion concluded the rule's justification is the conflict between serving as advocate and as witness, which does not arise for a secretary who does not act as advocate.

Q: What if the lawyer himself ends up being called as a witness?

A: The opinion concluded that if it later develops that the lawyer will or should be a witness for either side, he must then govern his conduct by Rule 5.2(b) or (c).

Background and rules framework

The opinion applied North Carolina Rule 5.2 on the lawyer as witness (corresponding to Model Rule 3.7), which barred accepting employment where the lawyer or a firm lawyer ought to testify. The analysis turned on the rule's limitation to lawyers, not nonlawyer staff, and on the low likelihood that Attorney A himself would be called given the many available witnesses.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 5.2(a), (b), (c) (lawyer as witness)
• MR 3.7 (lawyer as witness)

See also

• NC Ethics Op. RPC 33: client's alias and candor to the tribunal
• NC Ethics Op. RPC 28: representing both crash victims' estates

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-19/

Original opinion text

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

Editor's Note: See Rule 3.7 of the Revised Rules for additional guidance.

Inquiry:

Over a 10-year period, Attorney A drafted eight deeds under the provisions of which X, a widow, conveyed to Y and Z, husband and wife and unrelated neighbors, various tracts or parcels of land. Six of the eight instruments were notarized by a secretary employed by Attorney A's firm. On two of the six occasions, Attorney A went with his secretary, the notary, to the home of the grantor to explain the instruments.

In each instance, the grantees, or one of the grantees, initially came to Attorney A to have him draft the deed. The grantee paid Attorney A for drafting each of the deeds. Attorney A never represented the grantor in any other legal matter and did not purport to represent the grantor with regard to these deeds except that he did undertake to go over some of the provisions of two of the deeds.

The grantor is now deceased. Three of her grandchildren have instituted a suit seeking to set aside all eight deeds on the grounds of lack of mental capacity on the part of the grantor and undue influence exerted upon the grantor by the grantees. Approximately 50 witnesses have been interviewed and will testify to facts tending to refute the allegations made by the plaintiffs. Y and Z desire that Attorney A represent them with regard plaintiff's suit. Attorney A has explained to Y and Z that he would not be able to accept employment on their behalf and then voluntarily testify on their behalf as a witness. Attorney A believes that there are many other witnesses who can ably and better testify on behalf of Y and Z to the issues of the grantor's mental capacity and to refute the undue influence allegations. Attorney A has also explained to Y and Z that it is his opinion that his secretary, who notarized six of these instruments, could testify if he represented Y and Z. Attorney A recognizes some possibility that he might be called as a witness by plaintiffs, but he believes this possibility to be very unlikely.

May Attorney A ethically accept employment by Y and Z to defend them and represent their interests in the proceeding to set aside the deeds on the grounds of the grantor's alleged lack of mental capacity and alleged undue influence exerted upon the grantor by the grantees, given the fact that Attorney A drafted the deeds, was present when two of them were executed, and that a secretary from his firm notarized six of the deeds and would probably need to be called as a witness by Y and Z as to the condition of the grantor at the time of execution of those six deeds? Could Attorney A, if he undertook this employment on behalf of Y and Z, ethically represent them and call a secretary from his law firm as a witness on behalf of Y and Z and permit her to testify as to the mental capacity of the grantor and also permit her to testify that Attorney A was present and explained the content of the instruments to the grantor on two occasions? Would it be proper for Attorney A to accept the employment by Y and Z if the secretary (notary) employed by his firm was not called as a witness by his clients, but with the knowledge that he would probably be called as a witness on behalf of plaintiffs?

Opinion:

Yes. Attorney A may ethically represent Y and Z in the proceeding instituted by the grantor's grandchildren to set aside the eight deeds in question, under the anticipated circumstances. While Rule 5.2 prohibits a lawyer from accepting employment in most instances if he knows or if it is obvious that either he or another lawyer in his firm ought to be called as a witness for either side, neither Rule 5.2 nor any other Rule speaks to prohibiting representation when an employee in the firm will probably be called as a witness. The comment indicates that the underlying justification for Rule 5.2 relates to the conflict between the dual roles of advocate and witness, a conflict which does not exist for this secretary since she does not appear and participate as advocate. The prohibition on accepting employment only applies if the lawyer "knows or it is obvious that he or a lawyer in his firm ought to be called as a witness...." Rule 5.2(a). In this instance, it appears highly unlikely that Attorney A would be called as a witness since there are numerous other witnesses who can testify to the issues of mental capacity and undue influence, or lack thereof, on behalf of Y and Z. In addition, Attorney A believes that it is highly unlikely that plaintiffs would call him as a witness, a belief which appears to be reasonable under the circumstances. Of course, if Attorney A accepts the employment and it subsequently develops that he will or should be called as a witness on either side, he would then have to govern his conduct by Rule 5.2(b) or (c).