A colleague at my firm drafted and witnessed a will and will likely testify in a contested probate over the testator's capacity. Can I still represent the executor or estate in that proceeding?

Plain-English summary

The inquiring attorney filed a petition for probate of a client's will. Another lawyer in the attorney's firm had drafted the will and was a subscribing witness. An objection was filed asserting the testator lacked testamentary capacity, and the attorney anticipated that the other firm lawyer would testify. The attorney asked whether the Rules permit an attorney whose partner or associate is expected to testify in a contested probate matter to represent the executor or the estate.

The panel answered yes. Rule 3.7 bars a lawyer from acting as both advocate and witness in a proceeding except in limited circumstances, but unlike the predecessor Code, Rule 3.7 does not extend that prohibition to the testifying lawyer's partners or associates. Rule 3.7(b) provides that a lawyer may act as advocate in a trial in which another lawyer in the firm is likely to be a witness unless precluded by Rule 1.7 or Rule 1.9, making clear that the Rule 3.7(a) disability is personal and not imputed. The panel noted this is consistent with Rule 1.10(a), which lists Rules 1.7, 1.8(c), 1.9, and 2.2, but not Rule 3.7, as the sources of imputed disqualification, while Rule 3.7(b)'s cross-reference to Rules 1.7 and 1.9 protects the client from conflicts, for example where the client's testimony would conflict with the lawyer's or a firm member's. The attorney had represented that there were no Rule 1.7 or 1.9 conflicts, and the panel lacked the facts to determine independently whether any existed. The panel added that its advice is protective and not binding on a court.

Currency note

This opinion was issued in May 1997, 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. 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 Treat this page as historical context, not current guidance.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 lawyer be the advocate when a colleague in the firm is a witness?

A: Yes. The opinion concluded that under Rule 3.7(b) a lawyer may act as advocate even though another lawyer in the firm is likely to testify, unless precluded by Rule 1.7 or Rule 1.9.

Q: Is the advocate-witness rule imputed to the whole firm?

A: No. The opinion explained that the Rule 3.7(a) disability is personal and is not imputed, and that Rule 1.10(a) does not list Rule 3.7 among the sources of imputed disqualification.

Q: When would the firm lawyer still be disqualified?

A: The opinion said the representation would be precluded if there were a conflict of interest under Rule 1.7 or Rule 1.9, for example where the client's testimony would conflict with that of the lawyer or a firm member.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 3.7 (Model Rule 3.7). Rule 3.7(a) bars a lawyer likely to be a necessary witness from acting as advocate at trial, with exceptions for uncontested issues, the nature and value of legal services, and substantial hardship. Rule 3.7(b) permits a lawyer to act as advocate when another firm lawyer is likely to be a witness unless precluded by Rule 1.7 or 1.9. The panel read Rule 3.7(b) together with Rule 1.10(a), which omits Rule 3.7 from its imputation list, and relied on Hazard and Hodes and the Annotated Model Rules.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.7 / RI RPC 3.7(a), 3.7(b) (lawyer as witness)
• Model Rules 1.7, 1.9 / RI RPC 1.7, 1.9 (conflicts of interest), cross-referenced by Rule 3.7(b)
• Model Rule 1.10 / RI RPC 1.10(a) (imputation; omits Rule 3.7)

Cases:

• O'Rourke v. Power, No. 95-458 M.P. (R.I. Feb. 26, 1997), a court retains independent authority over the propriety of a representation

See also

• RI EAP Op. 97-13: When a spouse works at the opposing firm
• RI EAP Op. 99-09: An of-counsel affiliation is not a firm for imputation

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%2097-11.pdf

Original opinion text

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

Final

                         RHODE ISLAND SUPREME COURT
                            ETHICS ADVISORY PANEL
                          Opinion No. 97-11, Request No. 713
                                  Issued May 8, 1997

Facts:
The inquiring attorney filed a petition for probate of a client's will. Another lawyer in the
inquiring attorney's law firm had drafted the will and was a subscribing witness. An objection to
the petition has been filed on the grounds that the testator lacked testamentary capacity. The in-
quiring attorney anticipates that the other lawyer in his/her law firm will testify in the matter.

Issues Presented:

    The inquiring attorney asks whether the Rules of Professional Conduct permit an attorney

whose partner or associate is expected to testify in a contested probate matter to represent the ex-
ecutor or the estate in the probate proceedings.

Opinion:

     Yes. Pursuant to Rule 3.7(b) of the Rules of Professional Conduct, the inquiring attor-

ney may represent the executor or the estate in probate proceedings in which another lawyer in
his/her law firm is likely to be called as a witness, provided that the inquiring attorney is not oth-
erwise precluded from the representation by reason of a conflict of interest under Rule 1.7 or
Rule 1.9.

Reasoning:

    Rule 3.7 of the Rules of Professional Conduct prohibits an attorney from acting in the

dual capacities of advocate and witness in a proceeding, except in limited circumstances. Unlike
the predecessor Code of Professional Responsibility, Rule 3.7 does not extend the prohibition to
the partners or associates of an attorney who will testify. See Annotated Model Rules of Profes-
sion al Conduct, at 362 (3rd ed. 1996). The rule states:

     Rule 3.7. Lawyer as Witness. -

      (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;

Final Op. No. 97-11
Page 2

           (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.

     (b) A lawyer may act as advocate in a trial in which another lawyer in
     the lawyer's firm is likely to be called as a witness unless precluded from
     doing so by Rule 1.7 or Rule 1.9.

      Rule 3.7(b) makes clear that the disability imposed by subsection (a) is personal and is

not to be imputed to other attorneys in the law firm. Geoffrey C. Hazard, Jr. and W. William
Hodes, The Law of Lawyering, §3.7: 301, at 684, (2nd ed. Supp.1997). The rule is consistent
with Rule 1.10(a) in that the latter does not contain any reference to Rule 3.7 in the list of situa-
tions requiring imputed disqualification. Id.; see Rule 1.10(a) (requiring disqualification of at-
torney's firm only when attorney is disqualified under Rule 1.7, Rule 1.8(c), Rule 1.9 or Rule
2.2). At the same time, Rule 3.7(b) protects a client from conflicts of interest by cross-
referencing Rule 1.7 (Conflicts of Interest: General Rule) and Rule 1.9 Conflict of Interest: For-
mer Client). For example, if there will be a conflict between the testimony of a client and that of
his/her attorney or a member of the attorney's firm, the representation would be precluded under
the conflict of interest provisions. See Annotated Model Rules of Professional Conduct at 356.

      Accordingly, the Panel concludes that the Rules of Professional Conduct permit the in-

quiring attorney to represent the estate or the executor in the probate proceeding in which an-
other member of his/her firm is likely to be called as a witness, unless the inquiring attorney is
precluded from doing so by Rule 1.7 or Rule 1.9. The inquiring attorney has represented to the
Panel that there are no conflicts of interest under Rule 1.7 or Rule 1.9. The Panel is without suf-
ficient factual information to make an independent determination of whether any such conflicts
of interest exist.

      The Panel's advice is protective in nature. It is provided for the benefit of the inquiring

attorney for the purpose of avoiding disciplinary action. It is not binding upon any other persons
including a court which has unfettered authority to render an independent decision. See
O'Rourke v. Power, No. 95-458 M.P. (R.I. Feb. 26, 1997).