Can a lawyer who drafted a deed defend a lawsuit seeking to set that conveyance aside?

Plain-English summary

The committee was asked whether a lawyer who prepared a deed could defend a suit to set that conveyance aside. The facts: a grantor conveyed all his real estate to his surviving son and the son's wife in joint survivorship tenancy, the deed was not recorded until after the grantor's death, and the issue of the grantor's predeceased son proposed to sue to set the conveyance aside. The committee gave a qualified yes, keyed to the lawyer-as-witness rules.

The committee applied DR 5-101(B), which barred accepting litigation employment where the lawyer knew or it was obvious he ought to be called as a witness on a contested matter, and DR 5-102, which required withdrawal if, after accepting employment, the lawyer learned he ought to be a witness for the client, or might be a witness for another party with testimony prejudicial to the client. Because the issues were not yet known, the committee distinguished two paths. If the pleadings raised only legal questions, such as the deed's sufficiency as an inter vivos conveyance or its character as an unattested will, the lawyer could defend and continue unless and until factual issues arose. If the complaint instead alleged undue influence, fraud, lack of mental capacity, nondelivery, or similar factual matters and the lawyer had substantial knowledge of them, he could not defend; and if such issues arose later, he had to withdraw under DR 5-102. The committee noted the rules did not shield him from a subpoena by the plaintiff.

Currency note

This opinion was issued in 1976 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could the deed-drafting lawyer ever defend the suit to set the conveyance aside?

A: Yes, but only while the case raised legal issues. The committee allowed the defense if the pleadings raised only legal questions like the deed's sufficiency or its character as an unattested will.

Q: What if the suit alleged fraud or undue influence?

A: If the complaint raised such factual matters and the lawyer had substantial knowledge of them, the committee said he could not defend; if those issues arose later, he had to withdraw under DR 5-102.

Q: Did the lawyer-witness rules protect him from being called by the other side?

A: No. The committee noted that DR 5-101(B) and 5-102 did not shield him from a subpoena by the plaintiff.

Background and rules framework

The opinion applied the former Code's lawyer-as-witness provisions, DR 5-101(B) (declining employment when likely to be a witness) and DR 5-102 (mandatory withdrawal when the witness situation develops). The modern analog is Model Rule 3.7 (lawyer as witness).

Citations and references

Rules of Professional Conduct:

• DR 5-101(B), DR 5-102 (lawyer as witness); modern analog Model Rule 3.7

See also

• KBA Ethics Op. E-155: Suing a Former Corporate Client
• KBA Ethics Op. E-146: Former Prosecutor Defending After Leaving Office

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-145.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-145
Issued: July 1976

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May a lawyer who prepared a deed defend a suit to have the conveyance set aside?

Answer:

Qualified yes.

References:

DR 5-101(B), 5-102

OPINION

The grantor had two sons, one of whom predeceased him leaving issue. The grantor conveyed all his real estate to his surviving son and the son's wife, in joint survivorship tenancy. The deed was not recorded until after the grantor's death. The issue of grantor's deceased son propose to bring suit to set the conveyance aside. May the lawyer who prepared the deed defend this suit?

As relevant here, DR 5-101(B) provides that a lawyer may not accept employment in litigation if he knows or it is obvious that he ought to be called as a witness concerning any contested matter. DR 5-102 provides that if the lawyer has already accepted employment in litigation, he must withdraw as counsel if (a) he learns or it is obvious that he ought to be called as a witness for his client concerning any contested matter, or (b) he learns or it is obvious that he may be called as a witness for a party other than his client and his testimony may be prejudicial to his client.

We are not advised of the issues the applicant expects to be raised in the suit, and possibly he cannot know what issues will be raised until the pleadings have been completed.

It may be that the pleadings will raise only legal issues such as the legal sufficiency of the deed as an inter vivos conveyance or possibly its character as an unattested will. In that case, the applicant may accept employment to defend the suit and may continue that employment unless and until factual issues are raised.

It appears more likely that the complaint will allege undue influence, fraud, lack of mental capacity, nondelivery, and other factual matters which must be contested. We are not advised as to what knowledge the applicant has of these issues and he has any substantial knowledge concerning them, he may not defend the suit. If the complaint does not raise such issues but they nonetheless arise in the course of the suit (whether by formal amendment to the pleadings, pretrial order, or otherwise), he must withdraw as required by DR 5-102. He must consider the fact that DR 5-101(B) and 5-102 do not shield him from subpoena by the plaintiff.

Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.