Can a law firm draft a will for an expert it regularly calls to testify for its clients, and must it disclose that relationship?
NY State Bar Ethics Opinion 1140: Representing a testifying expert witness
Short answer: A workers' compensation firm may draft a will for a treating health-care provider whom it occasionally calls as a witness for its clients; the work does not create a disqualifying conflict, and the firm is not required to disclose the attorney-client relationship to opposing counsel or the tribunal, though it must answer truthfully if asked and ensure the witness testifies truthfully before a tribunal.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
A firm representing injured workers is asked by a health-care provider, who has a long professional and social relationship with the firm's lawyers, to draft wills for him and his wife at the firm's normal fee. The provider treats some of the firm's injured-worker clients and occasionally testifies for them before a Workers' Compensation Law Judge when an insurer denies coverage. There is no referral arrangement.
The committee finds no conflict under Rule 1.7. Drafting a will for the provider does not involve "differing interests" (Rule 1.0(f)) and is not adverse to or related to the firm's workers' compensation matters. The "mere possibility" of a future conflict does not require disclosure and consent (Rule 1.7 Comment [8]). Nor does the firm's routine fee or its social relationship pose a "significant risk" of impairing its professional judgment for its clients, such as in deciding whether to call the provider as a witness, so there is no personal-interest conflict under Rule 1.7(a)(2) (citing N.Y. State 901).
On disclosure, nothing in the Rules requires the firm to volunteer that it represents the provider. If a client or opposing counsel asks, the firm must respond truthfully (Rule 4.1), subject to Rule 1.6(a) confidentiality, which may require the provider's informed consent to disclose, since estate matters are sensitive. Before a tribunal, the duty of confidentiality may yield: if the tribunal asks about the relationship, the firm must be honest and must ensure the witness is honest, including correcting false testimony, because Rule 3.3(c) overrides confidentiality where Rules 3.3(a) and (b) require disclosure (citing N.Y. State 1123). Absent such a question or false testimony, the firm need not disclose the relationship.
In practice
Under this opinion, a firm may draft a will for an expert it calls as a witness for its clients without obtaining the clients' consent, because the estate work creates no disqualifying or personal-interest conflict under Rule 1.7. The firm is not required to disclose the representation, but it must answer truthfully if a client or opposing counsel asks (Rule 4.1), with disclosure of the sensitive estate matter subject to the provider's confidentiality under Rule 1.6(a). Before a tribunal, the firm must be candid if asked and must ensure the witness testifies truthfully, correcting false testimony if necessary, since Rule 3.3(c) overrides confidentiality in that setting.
Common questions
Q: Does drafting a will for a testifying expert create a conflict?
A: No. The estate work does not involve differing interests and poses no significant risk to the firm's judgment for its clients, so there is no Rule 1.7 conflict requiring consent (Opinion 1140 ¶¶ 6-7).
Q: Must the firm disclose that it represents the witness?
A: Not voluntarily. But it must answer truthfully if a client or opposing counsel asks, subject to Rule 1.6(a) confidentiality, which may require the provider's consent (¶ 8).
Q: What changes when the question comes from a tribunal?
A: The firm must be honest and ensure the witness is too. Rule 3.3(c) overrides confidentiality where Rules 3.3(a) and (b) require disclosure or correction of false testimony (¶ 8).
Background and rules framework
The opinion applies Rule 1.7 (Model Rule 1.7) on concurrent and personal-interest conflicts, using the Rule 1.0(f) "differing interests" definition, alongside Rule 1.6 (Model Rule 1.6) on confidentiality, Rule 4.1 (Model Rule 4.1) on truthfulness to third persons, and Rule 3.3(a), (c) (Model Rule 3.3) on candor to a tribunal, including the override of confidentiality.
Citations and references
Rules of Professional Conduct:
- New York Rule 1.7 (Model Rule 1.7): conflicts; personal-interest conflicts
- New York Rule 1.6 (Model Rule 1.6): confidential information
- New York Rule 4.1 (Model Rule 4.1): truthfulness to third persons
- New York Rule 3.3(a), (c) (Model Rule 3.3): candor to a tribunal; override of confidentiality
Other opinions cited:
- N.Y. State 901 (2011): concurrent unrelated representations are not a personal-interest conflict
- N.Y. State 1123 (2017): disclosing confidential information to correct false statements to a tribunal
See also
- NY State Bar Op. 1141: Co-counsel are not "associated" for conflict imputation
- NY State Bar Op. 1130: Town attorney's firm and a zoning applicant
- NY State Bar Op. 1150: Referrals with a real-estate broker spouse
Source
- Landing page: https://nysba.org/ethics-opinion-1140/