Can a lawyer represent an heir contesting a will when the lawyer and his secretary will be material witnesses on the testator's mental competence?

Currency note

The Board of Professional Responsibility vacated this opinion on September 11, 2015 due to changes in the law or rules. It was also issued in 1981, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Plain-English summary

Two years before the inquiry, a client had asked an attorney to prepare a will for her, but after consultation, both the attorney and his secretary determined she was not competent to make a will at that time. The client had been accompanied by a friend who wanted to be named as her conservator. The client then went to a different attorney, who prepared a will leaving part of her estate to that friend. After the client died, her son asked the first attorney to represent him in challenging the will, raising the question of whether the attorney could properly accept that employment.

The Board found that both the attorney and his secretary would obviously be material witnesses in the will contest, since the client's mental competence and testamentary capacity would be of prime importance. Disciplinary Rule 5-101(B) provided that a lawyer shall not accept litigation employment if he knows, or it is obvious, that he or a firm lawyer ought to be called as a witness, except where the testimony would relate solely to an uncontested matter or to a matter of formality with no substantial opposing evidence expected. Ethical Consideration 5-9 explained the policy: a lawyer who is both counsel and witness becomes more easily impeachable for interest and may be a less effective witness, opposing counsel may be handicapped in challenging the lawyer's credibility, and an advocate who becomes a witness ends up arguing his own credibility, an inconsistent combination of the advocate's and witness's roles.

The Board concluded the lawyer should decline the representation because it was contemplated that either he or his secretary would appear as a witness.

Common questions

Q: Can a lawyer represent a client in a will contest when the lawyer will have to testify about the testator's competence?

A: No, as this opinion originally held. It states the lawyer "should thus decline the representation if it is contemplated that either he or his secretary would appear as a witness," applying DR 5-101(B).

Q: Do the rule's exceptions for uncontested or formal testimony apply when competence itself is disputed?

A: No. The opinion notes the exceptions apply only "if the testimony will relate solely to an uncontested matter" or "to a matter of formality" with no expected opposing evidence, neither of which described testimony central to a contested competence issue.

Q: Why does the rule bar a lawyer from being both witness and advocate?

A: The opinion quotes EC 5-9: "An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively."

Background and rules framework

The opinion applied Disciplinary Rule 5-101(B) (lawyer as witness) and Ethical Consideration 5-9 of the Tennessee Code of Professional Responsibility. The modern correlate is Model Rule 3.7 (lawyer as witness), noted here as a navigational cross-reference rather than a rule the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• DR 5-101(B) (lawyer as witness) and EC 5-9 (advocate-witness policy rationale), Tennessee Code of Professional Responsibility
• Model Rule 3.7 (lawyer as witness), modern correlate

See also

• Tenn. Ethics Op. 81-F-19: Lawyer-Conservator Suing a Bank as a Necessary Witness
• Tenn. Ethics Op. 83-F-43: Representing an Associate
• Tenn. Ethics Op. 83-F-54: Lawyer Who Witnessed a Will Defending It in a Will Contest

Source

• Landing page: https://www.tbpr.org/ethic_opinions/81-f-10

Original opinion text

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

81-F-10 - Vacated*

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.

FORMAL ETHICS OPINION 81-F-10

On May 13, 1981, Chief Disciplinary Counsel issued an Advisory Ethics Opinion and the Board of Professional Responsibility, pursuant to Section 26 of Rule 9 of the Rules of the Supreme Court of Tennessee adopted January 28, 1981, has been asked to issue a formal opinion based on the following factual situation.

Some two years ago, a client requested the attorney to prepare a will for her, but after consultation with her, both the attorney and his secretary determined that the client was not competent to make a will at that time. The client was accompanied by a friend who desired to be named as conservator for the client. The client apparently then went to another attorney who prepared a will for her, leaving part of her estate to the friend who had accompanied her to the attorney's office. Following the client's death, her son requested the attorney to represent him in challenging the will, and the question raised was as to the propriety of the attorney accepting such employment.

Obviously, both the attorney and his secretary will be material witnesses in the will contest case in which the issue of mental competence and testamentary capacity of the client will be of prime importance. Rule 8 of the Rules of the Supreme Court of Tennessee is the Code of Professional Responsibility. Disciplinary Rule 5-101(B) provides that:

A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:

(1) If the testimony will relate solely to an uncontested matter;

(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony ....

Ethical Consideration 5-9 provides:

Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. 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. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.

The lawyer should thus decline the representation if it is contemplated that either he or his secretary would appear as a witness.

This 25th day of June, 1981.

ETHICS COMMITTEE:

Joseph G. Cummings

F. Evans Harvill

John R. Rucker

APPROVED AND ADOPTED BY THE BOARD