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
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