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Did an estate lawyer have to leave a probate matter after becoming a witness in a separate will-construction case?

Short answer No. After other counsel brought the separate construction action, the opinion allowed the lawyer to continue representing the executor in the distinct probate proceeding.
Bar
NELAC
Issued
1974
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1974. Ask about yours and see what the current Nebraska Rules of Professional Conduct say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

The executor's lawyer had drafted and witnessed the will and expected to give material, potentially contested testimony about its construction. The lawyer declined to bring the construction suit under former DR 5-101(B), and other counsel filed that action in district court.

The committee treated the will-construction case and probate as separate proceedings. The probate matter would merely execute the final order entered in the construction suit.

Former EC 5-9 described the credibility and advocacy problems created when trial counsel also appears as a witness. Because those concerns would not arise from continued representation in the separate probate matter, the committee found no objection to the lawyer remaining as the executor's probate counsel.

Currency note

This opinion was issued in 1974, before Nebraska's adoption of the 2005 Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Could the lawyer handle the will-construction suit?

A: No. The lawyer properly declined that engagement because the lawyer would give substantial, potentially contested testimony going to the merits.

Q: Why could the lawyer remain in the probate proceeding?

A: The probate matter was separate and would merely execute the construction court's final order, so the lawyer would not act as both advocate and witness there.

Q: Who handled the construction action?

A: The executor engaged other counsel to bring the separate district-court action.

Background and rules framework

Former DR 5-101 and DR 5-102 restricted a lawyer from trying a case in which the lawyer would be a material witness. EC 5-9 explained that combining those roles could impair the lawyer's effectiveness as a witness and hinder opposing counsel's credibility challenge.

Citations and references

Former Nebraska Code of Professional Responsibility:

  • EC 5-9
  • DR 5-101(B)
  • DR 5-102

See also

Source

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 74-9

AN ATTORNEY WHO IS REPRESENTING THE EXECUTOR IN THE PROBATE OF AN ESTATE AND WHO DREW AND WITNESSED THE WILL BEING PROBATED NEED NOT WITHDRAW FROM THE PROBATE PROCEEDINGS WHEN IT BECOMES APPARENT THAT HE WILL BE A WITNESS IN AN ACTION TO CONSTRUE THE WILL BROUGHT BY THE EXECUTOR BUT USING OTHER COUNSEL.

FACTS

The question posed states that the attorney will be a witness in will construction case concerning matters which are substantial, which may be contested and which go to the merits of the controversy concerning construction of the will. The attorney properly declined to bring the suit for construction of the will because of DR 5-101 (b) and thus other counsel was engaged to bring this separate action in district court. The Probate proceedings are wholly separate and distinct from the suit for construction of the will. The probate proceedings will merely execute the court's final order in the construction suit.

DISCUSSION

The reasons for DR 5-101 and DR 5-102 (which forbid an attorney from trying a case in which he is to be a material witness) are set forth in the Ethical Considerations: EC 5-9, which states that:

"If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility."

None of these underlying reasons for the Disciplinary Rules will come into play in this case by the mere continued representation of the executor in the probate proceedings.

For the above reasons, we conclude that there is no objection to the lawyer continuing to represent the estate in the probate proceedings.

Nebraska Ethics Advisory Opinion for Lawyers No. 74-9

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