You have presented a hypothetical situation in which Attorney G was
a partner in Firm D when he interviewed J and drew her will, which
was subsequently signed by J, with Firm D employees, W and S,
witnessing the signing and attesting to the sound mind and
disposing memory of J.  B, also an employee of Firm D, notarized
the will.  Attorney G has since left Firm D.

Several years later, J died.  Suit has been filed challenging the
validity of J's will, and the beneficiaries have been named as
defendants.  Plaintiff claims undue influence by the defendants and
lack of testamentary capacity on the part of J.  The defendants
have retained Firm D to represent them in this action.  It is
likely that Attorney G will be called as a witness for the defense
to testify concerning his interview with J.  W and S, who are
currently employed by Firm D, will also be called to testify
concerning J's mental competency at the time of the execution of
the will.

Under the facts you have presented, you have asked the committee to
opine as to whether a conflict of interest exists in Firm D's
representation of the beneficiaries of the will in a will contest
suit when the will was drawn by a former partner of Firm D.

The appropriate and controlling disciplinary rules relative to your
inquiry are DR 5-101(B) and DR 5-102(A) which require an attorney
and his law firm to decline employment or withdraw as counsel in
pending litigation if he knows that he or another attorney in his
firm ought to be called as a witness on behalf of a client.  These
rules, sometimes called the "witness-advocate" rule, are based on
the premise that the lawyer must decide whether his client's
interests are better served if the attorney is a witness or an
advocate.  The attorney cannot do both as he would be placed in the
unseemly and ineffective position of advocating his own
credibility.  The two roles are inconsistent.  EC 5-9.

DRs 5-101(B) and 5-102(A) are applicable only when a lawyer
currently associated with the law office ought to be called as a
witness.  In Legal Ethics Opinion #1507 the Committee held that a
public defender's office was not required to withdraw because of
the need to call a former assistant public defender to impeach a
witness for the Commonwealth.  Where the attorney-witness is no
longer with the law firm serving as trial counsel, the "witness-
advocate" rule stated in DR 5-102(A) does not apply.

In the facts you present, the committee believes that Firm D may
continue to represent the defendants in the suit challenging the
will prepared by Attorney G, who is no longer with the firm, even
though Attorney G is expected to be called as a witness on behalf
of the defendants.  In regard to the current employees of Firm D (W
and S ) who witnessed the will, the fact that they are also
expected to testify does not disqualify Firm D under DR 5-102(A). 
This rule addresses the ethical concerns created when a trial
attorney or a member of his firm is expected to testify on behalf
of a client.  The rule does not apply when a non-lawyer employee is
called by the firm.  See, e.g., LEO #1500 (lawyer can call his
legal assistant to testify in order to impeach at trial a witness
whom the legal assistant had interviewed).

[DRs 5-101, 5-102; EC 5-9; LEOs 1500, 1507]

Committee Opinion
February 28, 1996