When a lawyer who witnessed a codicil will be the principal witness in a will contest, may his firm still represent the proponent, and may he argue the case?
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This page answers the general question as of 1966. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquirer, now an associate of a law firm, had while associated with another firm attended to the execution of a second codicil to a will. Knowing that insanity and mental-incompetency proceedings had previously taken place regarding the testatrix, he had questioned her to satisfy himself that she understood the nature and extent of her estate, the natural objects of her bounty, and the document she was executing, and, so satisfied, he attended to the execution of the codicil and signed it as an attesting witness. A caveat was then filed. The inquirer asked whether, since he would be the principal witness, his present firm could act for the proponent-executor (whom he had represented both at the time of the codicil and presently), and whether he himself could argue the matter on the return day of an order to show cause.
The Committee had dealt with a similar situation in its Opinion 45, where a partner of a firm had witnessed a contested will; it had said there was no ethical reason why the firm should not act for the proponent, and it saw no reason why the inquirer's firm should not act here. Canon 19 and the authorities cited in Opinion 45 were apposite.
The Committee added that the inquirer himself may not argue the matter on the return day of the order to show cause, nor otherwise participate in the probate proceedings except in his role as a witness.
Currency note
This opinion was issued in June 1966, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canon 19, under which a lawyer who is a witness should leave the trial of the case to other counsel. The subject is now treated under RPC 3.7 (lawyer as witness), which also addresses when the witness-lawyer's firm may nonetheless act. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.
Common questions
Q: Can the firm represent the proponent if one of its lawyers is the key witness?
A: Yes. The Committee held, following its Opinion 45, that there was no ethical reason the inquirer's firm could not act for the proponent.
Q: Can the lawyer-witness argue the case?
A: No. The Committee said he may not argue the matter on the return day or otherwise participate in the probate proceedings except in his role as a witness.
Background and rules framework
The opinion applies Canon 19 of the Canons of Professional Ethics, which directed a lawyer who is a witness (except as to merely formal matters) to leave the trial to other counsel, while permitting the witness-lawyer's firm to act. In current New Jersey terms, the subject maps to RPC 3.7 (lawyer as witness), including its treatment of imputation to the lawyer's firm.
Citations and references
Other authorities:
- Canons of Professional Ethics, Canon 19 (lawyer as witness)
Other opinions cited:
- NJ ACPE Opinion 45, 87 N.J.L.J. 369 (1964): a firm may act for the proponent though a member witnessed the contested will
See also
Source
- Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp95-1.html
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
89 N.J.L.J. 401
June 23, 1966
OPINION 95
Associate - Witness to Contested Will
The inquirer is an associate of a law firm and, while associated with another law firm, attended to the execution of a second codicil to a will. He had knowledge that prior to that time insanity and mental incompetency proceedings had taken place with respect to the testatrix. He, therefore, asked her numerous questions for the purpose of assuring himself that she was aware of the nature and extent of her estate, the natural objects of her bounty, and the nature of the document she was executing. Being satisfied that she was so aware and understood what she was doing, he attended to the execution of the second codicil and signed it as an attesting witness.
A caveat has been filed and the inquirer desires to know, since he will be the principal witness in the case, whether his present firm can act for the proponent - executor - whom the inquirer represented at the time he was associated with the first law firm and at the present time--and whether he can argue the matter on the return day of an order to show cause which has been issued.
We dealt with a similar situation in Opinion 45, 87 N.J.L.J. 369 (1964). Canons of Professional Ethics, Canon 19, and other authorities therein cited are apposite here. That inquiry involved a partner of a firm who had witnessed a will which was being contested. We said there that was no ethical reason why the firm should not act for the proponent of the will, and we see no reason why the inquirer's firm should not so act here.
Of course, the inquirer may not argue the matter on the return day of the order to show cause, nor should he otherwise participate in the probate proceedings except in his role as a witness.
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