Can a lawyer who drafted and witnessed a will charge a legal fee to appear before the surrogate's probate clerk to testify as a witness to that will?

Plain-English summary

A member of the Judiciary asked about the propriety of an attorney charging a "sizable fee" to appear before a surrogate's probate clerk to testify as a witness to a will, in cases where the lawyer or an associate had drafted and witnessed the will but the executor had retained counsel other than the scrivener. The inquirer thought the practice deplorable, stated that no professional fee was involved because the lawyer was acting simply as a fact witness, and suggested that good manners and the good name of the profession required a lawyer to testify to a will without charge.

The Committee agreed that no professional fee is involved because the lawyer is acting simply as a fact witness. It held that no attorney is entitled to charge a legal fee for appearing before a surrogate or probate clerk to give evidence, and that the situation does not come within DR 2-106, the rule governing fees. It added that it could not render an opinion on any amount that would constitute a reasonable allowance for attendance, since doing so was beyond its jurisdiction.

Currency note

This opinion was issued in 1976, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The fee rule then in DR 2-106 is now RPC 1.5, and the lawyer-as-witness limitation is now RPC 3.7. Treat this page as historical context, not current guidance.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 a lawyer charge a legal fee to testify as a witness to a will?

A: Under this opinion, no. The Committee held the lawyer acts simply as a fact witness and is not entitled to a legal fee for the appearance.

Q: Did it matter that the lawyer drafted the will?

A: No. The inquiry concerned a lawyer or associate who drafted and witnessed the will, and the Committee still treated the testimony as that of a fact witness, outside DR 2-106.

Q: Did the Committee set a permissible attendance amount?

A: No. It held that determining any reasonable allowance for attendance was beyond its jurisdiction.

Background and rules framework

The opinion distinguished a lawyer's role as a fact witness to a will from a professional service governed by the fee rule DR 2-106. In current New Jersey terms, fees are governed by RPC 1.5 and the lawyer-as-witness limitation by RPC 3.7.

Citations and references

Rules of Professional Conduct:

• DR 2-106 (fees for legal services), as in effect 1976; now MR 1.5 / NJ RPC 1.5
• Lawyer-as-witness limitation now under MR 3.7 / NJ RPC 3.7

See also

• NJ ACPE Op. 358: Suing an Estate the Lawyer Administered
• NJ ACPE Op. 402: Excessive Contingent Fees and an Excess Claim for Nonlitigation Services

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp348-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

99 N.J.L.J. 715, August 12, 1976

OPINION 348

Attorney's Fee as Will Witness

An inquiry has been made by a member of the Judiciary regarding the propriety of an attorney charging a "sizable fee" for appearing before a surrogate's probate clerk to testify as a witness to a will. Reference is made to the fact that these are cases in which the lawyer or an associate drafted the will and acted as a witness to it, but in which the executor has decided to employ counsel other than the scrivener. The inquirer asks for an expression of the Committee's view as to the propriety of such a fee. The inquirer further states that in his opinion the practice is deplorable and, secondly, indicates that he is of the opinion that "a professional fee is not involved since the lawyer is acting simply as a fact witness," and suggests that when a lawyer acts as a witness to a will the good manners and the good name of the profession required him to be readily available to testify without charge as a witness to the will.

We agree with the inquirer's statement that "a professional fee is not involved since the lawyer is acting simply as a fact witness." No attorney is entitled to charge a legal fee for appearing before a surrogate or probate clerk to give evidence. The factual situation referred to in this inquiry does not come within the purview of DR 2-106. This Committee cannot render an opinion as to an amount, if any, which would constitute a reasonable allowance for attendance, since it is beyond our jurisdiction to do so.