I drafted and witnessed a will that's now being contested, and I'll have to testify at trial, so I withdrew as trial counsel. Can I still handle discovery and pre-trial motions for the estate?

Plain-English summary

The inquiring attorney was retained to revise a client's estate plan and prepared a revocation of a power of attorney, a durable power of attorney, a will, and a durable power of attorney for healthcare. The attorney witnessed the will and the healthcare power of attorney. After the client died, the executor retained the attorney to probate the will and settle the estate. A friend of the decedent contested the will, and the attorney withdrew as counsel because he would be testifying at trial; a subsequent attorney appeared. The successor attorney invited the inquiring attorney to participate in discovery and pre-trial motions, and the attorney asked whether he could represent the executor or estate in those proceedings.

The panel analyzed the question under Rule 3.7 (Lawyer as Witness). Rule 3.7(a) prohibits a lawyer who is likely to be a necessary witness from acting as an advocate at trial, subject to exceptions. The panel explained that the rule does not bar the lawyer from playing a role in the representation short of trial advocacy, and that a lawyer expected to testify on contested issues at trial may represent the party in pre-trial proceedings.

The panel supported this by citing a State Bar of Minnesota ethics opinion (Op. CI-1118 (1985)) defining an "advocate" under Rule 3.7 as a person who participates as a spokesperson for the client in open court, and noting that case law allows an attorney to perform pre-trial work in a matter where the attorney will testify at trial because the attorney did not intend to play the advocate-at-trial role. The panel opined that, consistent with Rule 3.7, case law, and ethics opinions, the inquiring attorney may play a role in representing the executor or estate short of trial advocacy.

Currency note

This opinion was issued in 1995, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 3.7 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended several provisions. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Can a lawyer who will testify at trial still handle discovery and pre-trial motions?

A: Under this opinion, yes. The panel read Rule 3.7(a) to bar only advocacy at the trial itself, so the lawyer may represent the party in pre-trial proceedings short of trial advocacy.

Q: What counts as being an "advocate" under Rule 3.7?

A: The panel cited a Minnesota ethics opinion defining an advocate as a person who participates as a spokesperson for the client in open court; pre-trial work does not fall within that role.

Q: Does the lawyer have to withdraw entirely once it's clear he will testify?

A: The opinion did not require full withdrawal from the representation. It concluded the lawyer may continue in a role short of trial advocacy even while expected to testify on contested issues at trial.

Background and rules framework

The opinion applies Rule 3.7 (Lawyer as Witness) of the Rhode Island Rules of Professional Conduct, corresponding to Model Rule 3.7. As the panel quoted it, Rule 3.7(a) bars a lawyer who is likely to be a necessary witness from acting as an advocate at trial except for testimony on an uncontested issue or on the nature and value of legal services, and Rule 3.7(b) permits another lawyer in the firm to act as advocate unless precluded by Rule 1.7 or Rule 1.9. The panel read the prohibition to reach only trial advocacy, leaving pre-trial representation available.

Citations and references

Rules of Professional Conduct:

• MR 3.7 (lawyer as witness)
• RI RPC 3.7

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• State Bar of Minnesota, Committee on Professional and Judicial Ethics, Op. CI-1118 (1985), defining "advocate" under Rule 3.7 as a spokesperson for the client in open court

See also

• RI EAP Op. 2025-10: A Lawyer May Not Be Both Advocate and Expert Witness in the Same Matter

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2095-40.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Final

ETHICS ADVISORY PANEL
OPINION, #95-40, REQUEST #606
ISSUED - SEPTEMBER 14, 1995

The inquiring attorney was retained by a client to revise his/her estate plan and various related matters. The inquiring attorney prepared a revocation of a power of attorney, a durable power of attorney, will, and durable power of attorney for healthcare. The inquiring attorney witnessed the will and healthcare power of attorney. The client died and the executor retained the inquiring attorney for purposes of probating the will and settling the estate. A friend of the decedent contested the will and filed a petition with the court. The inquiring attorney withdrew as legal counsel to the executor/estate because he/she would be testifying at trial and the subsequent attorney entered his/her appearance.

The subsequent attorney has invited the inquiring attorney to participate in discovery and pre-trial motions. The inquiring attorney asks whether he/she may represent the executor/estate in discovery and pre-trial motions.

Rule 3.7 "Lawyers as Witness" states:

(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 legal services rendered in the case; or

(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(a) prohibits a lawyer who is to be a necessary witness from "acting as an advocate at trial," however, the Rule does not bar the lawyer from playing a role in the representation short of trial advocacy.

A lawyer who is expected to testify on contested issues at trial may represent the party in pre-trial proceedings. In State Bar of Minnesota, Committee on Professional and Judicial Ethics, Op CI-1118 (1985), the committee stated that an "advocate" in the context of Rule 3.7 is defined as a person who "participates as a spokesperson for the client in open court." Case law allows an attorney to perform pre-trial work on a matter where he/she will be called to testify at trial because the attorney did not intend to play the advocate at trial role. The Panel opines that in accordance with Rule 3.7, case law and ethics opinions that the inquiring attorney may play a role in the representation of the executor/estate short of trial advocacy.