Can the lawyer who drafted and notarized a will keep representing the executrix and beneficiary once someone contests the will's execution and the testator's capacity?

Plain-English summary

An attorney prepared a will signed by two witnesses, acting as notary, then filed the will for probate and represented the applicant. A contest was filed claiming the will was not executed according to state law and that the testatrix lacked testamentary capacity, along with a motion to disqualify the attorney who had prepared and notarized it.

The Committee applied DR 5-101, which bars a lawyer from accepting employment in contemplated or pending litigation if he knows or it is obvious that he or a firm lawyer ought to be called as a witness, subject to limited exceptions such as substantial hardship from the lawyer's distinctive value as counsel. The Committee found that when the attorney was asked to take on the will contest he knew he ought to be a witness, and that the facts did not establish an exception. It added that disqualification followed under DR 5-102(A) as well, even if the engagement is dated to the drafting of the will or to the probate before any contest was contemplated, because when it becomes apparent that the lawyer or his firm may be called as a witness, both the lawyer and the firm must withdraw, and no exception applied.

The Committee relied on Opinion 234, where a law partner had drafted a will, deed, and contract later attacked for fraud, undue influence, and incapacity; the partner's testimony was obviously important to mental capacity and the circumstances, so it was improper to accept the case knowing he would be a material witness. The Committee concluded the attorney here may not continue to represent the executrix and beneficiary in the contest.

Currency note

This opinion was issued in 1987, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, and Texas never adopted the ABA's Ethics 2000 framework. The current Texas rule on a lawyer serving as both advocate and witness is Rule 3.08, and the closest ABA analog is Model Rule 3.7. Subsequent rule changes 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Can the lawyer who drafted and notarized a will represent the beneficiary in a contest?

A: Per the opinion, no, where the contest challenges the will's execution and the testatrix's capacity. The Committee concluded the lawyer ought to be a witness, so DR 5-101 barred the engagement and DR 5-102(A) would require withdrawal.

Q: Does the lawyer's firm also have to withdraw?

A: Yes. The Committee stated that under DR 5-102(A) not only must the attorney withdraw, but his firm must withdraw as well, absent an exception, which the facts did not present.

Q: Did the substantial-hardship exception save the representation?

A: No. The Committee found the facts did not give rise to the exception for substantial hardship based on the lawyer's distinctive value as counsel.

Background and rules framework

The opinion interprets DR 5-101 of the former Texas Code of Professional Responsibility (declining employment when the lawyer or a firm lawyer ought to be a witness) and DR 5-102(A) (withdrawal of the lawyer and the firm when that becomes apparent during the representation). The closest current concepts are Texas Rule 3.08 and Model Rule 3.7 on the lawyer as witness. The analysis turns on the lawyer's role as the drafter and notary making his testimony necessary in a contest over execution and capacity.

Citations and references

Rules of Professional Conduct:

• MR 3.7 (lawyer as witness)
• DR 5-101, DR 5-102(A), Texas Code of Professional Responsibility

Other opinions cited:

• Texas Professional Ethics Committee Opinion 234 (lawyer who drafted instruments later attacked for capacity disqualified as a material witness)

See also

• TX Ethics Op. 447: Firm-Member Defendant as a Known Witness
• TX Ethics Op. 475: Opponent Calling a Lawyer as Witness
• TX Ethics Op. 468: Attorney Representing His Spouse While Testifying

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-439/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_439.pdf

Original opinion text

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

QUESTION PRESENTED

Is the attorney who prepared the will and notarized it disqualified to continue to act as attorney for the Independent Executrix and sole beneficiary under the will?

STATEMENT OF FACTS

An attorney prepares a will, which is signed by two witnesses, with the attorney acting as notary. The attorney files the will for probate and acts as attorney for said Applicant. A contest of the will is filed, claiming that the will was not executed in accordance with the laws of the State, and that the Testatrix did not have testamentary capacity. A motion is filed to disqualify the attorney who prepared the will and notarized it.

DISCUSSION

DR 5-101 provides: "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." There are certain exceptions to this and one exception is: "If refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case."

At the time the attorney was asked to accept employment in the will contest, he knew that he ought to be called as a witness in the case. The facts stated do not give rise to an exception to this rule.

Disqualification is further imposed, even if it should be held that the attorney's employment in the matter began when he was hired to draw the will rather than at the time when the will contest was contemplated, or that the employment began when the attorney was hired to handle the probate of the will at a time when no contest was contemplated. Under DR 5-102(A), if after an attorney undertakes employment in contemplated or pending litigation it is learned or it is obvious that he or his firm may be called as a witness on behalf of his client, he must withdraw from the case. Not only must the attorney withdraw, but also his firm must withdraw from employment. There are exceptions, but again the facts do not give rise to one of these exceptions.

Opinion 234 faced issues similar to the issues faced here. In that case A's law partner, B, drafted a will, deed and contract for a client. After the death of the client, the instruments were attacked on grounds of fraud, undue influence and material incapacity of the deceased client. It was held that B's testimony would obviously be important in establishing mental capacity and in establishing the circumstances. It was held that it would be improper for the attorney to accept the case knowing that he would be a material witness. Therefore, the attorney was disqualified.

CONCLUSION

The attorney who prepared the will and notarized it may not continue to act as attorney for the Independent Executrix and sole beneficiary when a contest of the will questions whether the will was executed in accordance with the laws of the State and whether the Testatrix had testamentary capacity

Tex. Comm. On Professional Ethics, Op. 439 (1987)