LEO: Attorney as Witness  LE Op. 1048

Attorney as Witness.

March 2, 1988

You advise that you prepared a will on behalf of a client who died in

1987. You believe that the original will was left in your custody, but are

unable to locate it. It appears that the will will have to be proven and

that you will have to testify regarding the signing of the will and the

fact that you are unable to locate it. You also advise that your firm

represents the beneficiaries of the will of your former client without

charge in the suit to prove the will.

You believe that your testimony would not be adverse to the interests of

the beneficiaries and therefore constitutes an exception as provided in

DR:5-102(B). You believe that your testimony would be helpful and

essential to their case. You also believe that your case is similar to

that addressed in LE Op. 836, which provided that it was not unethical

for an attorney to continue representing a defendant when the attorney's

law partner prepared the defendant's deed, which was the subject matter of

the suit, and when the attorney's partner would be called as a witness,

providing that the testimony of the attorney/partner as a witness was not

prejudicial.

You wish to know whether or not you must withdraw from representing the

beneficiaries of the will, due to the fact that you will probably be

called as a witness regarding the signing of the will and your inability

to locate the original will.

Disciplinary Rule 5-102(A) [ DR:5-102] states "If, after undertaking

employment in contemplated or pending litigation, a lawyer learns or it is

obvious that he or a lawyer in his firm ought to be called as a witness on

behalf of his client, he shall withdraw from the conduct of the trial and

his firm, if any, shall not continue representation in the trial, except

that he may continue the representation and he or a lawyer in his firm may

testify in the circumstances enumerated in DR:5-101(B)(1) through (3)."

Disciplinary Rule 5-101(B)(1) states that "a lawyer may continue

representation when he will be called as a witness if the testimony will

relate solely to an uncontested matter or to a matter of formality and

there is no reason to believe that substantial evidence will be offered in

opposition to the testimony."

In this instance, however, the attorney will be testifying as to the

validity of the will. From the facts provided in your letter, it appears

that this is a contested matter. Therefore, the Committee opines that you

should withdraw from representing the beneficiaries of the will.

The facts which you provide in your letter differ from those of LE Op.

836. In LE Op. 836, the attorney was called as a witness for someone

other than his client. In that situation, DR:5-102(B) was applicable.

Disciplinary Rule 5-102(B) states that "If, after undertaking employment

in contemplated or pending litigation, a lawyer learns or it is obvious

that he or a lawyer in his firm may be called as a witness other than on

behalf of his client, he may continue the representation until it is

apparent that his testimony is or may be prejudicial to his client."

Committee Opinion March 2, 1988