Can a lawyer try a will contest for the estate when his own partner, who witnessed the will, must testify to the decedent's competency?

Plain-English summary

The Committee was asked whether one member of a law firm could act as trial counsel for the executor of an estate when the decedent's competency to make his will was challenged, and another member of the firm, who had witnessed the will, would have to be called as a witness to support the decedent's competency.

The Committee set out Canon 19, which provides that a lawyer who is a witness for his client, except as to merely formal matters such as attestation or custody of an instrument, should leave the trial to other counsel, and should avoid testifying for his client except when essential to the ends of justice. It then followed the American Bar Association Committee's view, which modified earlier opinions and adopted the Philadelphia Bar Association's ruling, that the canon does not preclude a lawyer, with full disclosure to opposing counsel and the court, from testifying for a client represented by the lawyer's partner where the testimony relates to matters occurring in the course of the lawyer's professional duties, supports the client's position, and the lawyer's long and intimate familiarity with the matter makes his testimony important to the client.

The Committee agreed, holding that it did not construe "other counsel" in Canon 19 as necessarily excluding a partner of the lawyer who becomes a witness. Each case depends on its own facts and involves questions of good taste as well as ethics, to be resolved by the lawyer in light of the surrounding circumstances and within the outlined limits, with full disclosure to opposing counsel and the tribunal.

Currency note

This opinion was issued in June 1964, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canon 19 of the former Canons of Professional Ethics; the lawyer-as-witness question is now governed by RPC 3.7, including its provision on when another lawyer in the firm may act as advocate. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Did Canon 19 bar the lawyer-witness's partner from trying the case?

A: No. The Committee held that "other counsel" in Canon 19 does not necessarily exclude a partner of the lawyer who must testify, so the partner could serve as trial counsel.

Q: What conditions did the Committee attach?

A: Full disclosure to opposing counsel and the court, with the testimony relating to the lawyer's professional duties and supporting the client, and the matter resolved on its own facts given the lawyer's familiarity with the case.

Q: Was this treated as a fixed rule or a case-by-case judgment?

A: Case by case. The Committee said each case depends on its own facts and involves good taste as well as ethics, to be resolved within the limits it outlined.

Background and rules framework

The opinion applied Canon 19 of the former Canons of Professional Ethics, which directed a lawyer-witness to leave the trial to other counsel except as to formal matters. Drawing on ABA and Philadelphia Bar opinions, the Committee read "other counsel" to permit a partner of the witness to try the case with disclosure. The subject is now addressed by RPC 3.7.

Citations and references

Rules of Professional Conduct (as in effect at the time):

• Canon of Professional Ethics 19 (a lawyer as witness)

Other opinions cited:

• ABA Committee on Professional Ethics and Grievances, Opinion 220 (1941): a partner may try the case where the lawyer-witness testifies, with disclosure
• Philadelphia Bar Association, Committee on Professional Guidance, Opinion 8 (1941)
• Drinker, Legal Ethics 158 (1953)

See also

• NJ ACPE Op. 95: Associate as Witness to a Contested Will
• NJ ACPE Op. 421: Attorney Likely to Be a Witness; Timing of Withdrawal
• NJ ACPE Op. 348: Attorney's Fee When a Lawyer Is a Will Witness

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp45-1.html

Original opinion text

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

87 N.J.L.J. 369
June 11, 1964

OPINION 45

Partner - Witness to Contested Will

Inquiry is made as to the propriety of one member of a law firm acting as trial counsel for the executor of a decedent's estate where the competency of the decedent to make his will, witnessed by another member of the firm, is challenged and it will be necessary for the member of the firm acting as a witness to the will to be called as a witness to support the competency of the decedent to make his will.

Canons of Professional Ethics, 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 American Bar Association Committee has held, modifying its former opinions, and following the ruling of the Philadelphia Bar Association Committee on Professional Guidance, that this canon does not preclude a lawyer, with full disclosure to opposing counsel and to the court, from being a witness on behalf of a client represented by the lawyer's partner, where his testimony relates to matters occurring in the course of his professional duties and is in support of the client's position, and where the lawyer's long and intimate familiarity with the details of the matter in litigation makes it important to the client to have the benefit both of the lawyer's testimony and of the professional services of his firm. A.B.A. Comm. on Professional Ethics and Grievances, Opinion 220 (1941); Philadelphia Bar Association, Committee on Professional Guidance, Opinion 8 (1941); Drinker, Legal Ethics 158 (1953). With that conclusion, we agree.

We do not construe the words "other counsel" in Canon 19 as necessarily excluding a partner of the lawyer who must become a witness. Each case must depend on its own facts. Like many other problems arising in the course of professional employment, this involves questions of good taste as well as of ethics, its solution depending largely on the surrounding circumstances, in the light of which each case must be resolved, within the limits above outlined, by the lawyer, with, of course, full disclosure to opposing counsel and to the tribunal.