The deceased's attorney may be called as a witness in a will contest. Can I hire that attorney to prepare discovery on issues he won't testify about?

Plain-English summary

The inquiring attorney represented an executor in a will contest. The attorney for the deceased might be called as a witness. The inquiring attorney wanted to employ the deceased's attorney to prepare discovery material on issues on which that attorney would not have to testify, and asked whether the preparation of discovery could be referred to the deceased's attorney.

The panel analyzed the question under Rule 3.7 (Lawyer as Witness). Rule 3.7(a) prohibits a lawyer who is likely to be a necessary witness from acting as an advocate at trial, subject to exceptions. The panel explained that the rule does not bar the lawyer from playing a role in the representation short of trial advocacy, and that a lawyer expected to testify on contested issues may represent the party in pre-trial proceedings.

Citing a State Bar of Minnesota ethics opinion (Op. CI-1118 (1985)) that defines an "advocate" under Rule 3.7 as a person who participates as a spokesperson for the client in open court, the panel opined that the attorney for the deceased may play a role in representing the executor or estate short of trial advocacy, which permits the proposed discovery work.

Currency note

This opinion was issued in 1995, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 3.7 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended several provisions. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can a potential trial witness prepare discovery for the case?

A: Under this opinion, yes. The panel held that Rule 3.7 bars only advocacy at trial, so a lawyer who may testify can still prepare discovery and do other pre-trial work.

Q: What is the line the panel drew under Rule 3.7?

A: The line is trial advocacy. The panel adopted a definition of "advocate" as a spokesperson for the client in open court, and permitted the witness-lawyer to act short of that role.

Background and rules framework

The opinion applies Rule 3.7 (Lawyer as Witness), corresponding to Model Rule 3.7. As quoted, Rule 3.7(a) bars a lawyer who is likely to be a necessary witness from acting as an advocate at trial except where the testimony relates to an uncontested issue or to the nature and value of legal services, or where disqualification would work substantial hardship on the client. The panel read the prohibition to reach only trial advocacy, leaving pre-trial roles available.

Citations and references

Rules of Professional Conduct:

• MR 3.7 (lawyer as witness)
• RI RPC 3.7

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• State Bar of Minnesota, Committee on Professional and Judicial Ethics, Op. CI-1118 (1985), defining "advocate" under Rule 3.7 as a spokesperson for the client in open court

See also

• RI EAP Op. 95-40: A Lawyer-Witness May Represent the Estate in Pre-Trial Proceedings
• RI EAP Op. 2025-10: A Lawyer May Not Be Both Advocate and Expert Witness in the Same Matter

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2095-44.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Final

ETHICS ADVISORY PANEL
OPINION # 95-44, REQUEST # 620
ISSUED - SEPTEMBER 14, 1995

The inquiring attorney is an attorney for an executor in a will contest. The attorney for the deceased may be called as a witness. The inquiring attorney seeks to employ the attorney for the deceased to prepare discovery material on issues that he/she will not be required to testify as a witness. The inquiring attorney asks whether he/she may refer the preparation of discovery to the attorney for the deceased.

The Rule pertinent to this inquiry is as follows:

Rule 3.7 "Lawyer as Witness" states:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

Rule 3.7(a) prohibits a lawyer who will be witness from "acting as an advocate at trial," however, the Rule does not bar the lawyer from playing a role in the representation short of trial advocacy.

A lawyer who is expected to testify on contested issues at trial may represent the party in pre-trial proceedings. In State Bar of Minnesota, Committee on Professional Judicial Ethics, Op CI-1118 (1985), this committee stated that an "advocate" in the context on Rule 3.7 is defined as a person who "participates as a spokesperson for the client in open court." The case law allows an attorney to perform pre-trial work on a matter where he/she will be called to testify at trial because the attorney did not intend to play the "advocate at trial" role. The Panel opines that the attorney for the deceased may play a role in the representation of the executor/estate short of trial advocacy.