Can a lawyer who witnessed a will's execution and signed an affidavit of no undue influence represent the primary beneficiary in defending the will's validity?

Currency note

This opinion was issued in 1983, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Plain-English summary

A lawyer asked whether he could represent the primary beneficiary of a will, to uphold its validity on the issue of testamentary capacity, after he had witnessed the will's execution (along with his secretary) and had executed an affidavit attesting that the testator was under no constraint or undue influence. The will had been prepared by the lawyer's associate, who was nominated as executor and probated the will in common form using the affidavit. The lawyer stated he did not intend to testify, had no opinion on the decedent's competency, and did not recall the decedent's demeanor, having seen him only once.

The opinion observed that the secretary would be a material witness on mental competence and testamentary capacity, and that the lawyer himself "ought to be a witness, even though his testimony may be inconclusive." It applied Disciplinary Rule 5-101(B), which provides that "[a] lawyer shall not accept employment in ... pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness," and noted that Formal Ethics Opinion 81-F-10 had held a lawyer should decline representation if either he or his secretary would appear as a witness.

Finding that none of the exceptions in DR 5-101(B) applied, the opinion concluded it was improper for the attorney to represent the primary beneficiary to uphold the validity of the will on the issue of testamentary capacity.

Common questions

Q: Can a lawyer who witnessed a will represent the beneficiary defending it?

A: No. The opinion concluded it was "improper, in this instance, for the attorney to represent the primary beneficiary of the alleged will to uphold the validity of the will on the issue of testamentary capacity," because the lawyer "ought to be a witness."

Q: Does it matter that the lawyer says he does not intend to testify?

A: The opinion still found the bar applied, reasoning the lawyer "ought to be a witness, even though his testimony may be inconclusive," and that his secretary would be a material witness; DR 5-101(B) turned on whether the lawyer or a lawyer in his firm "ought to be called as a witness," not on the lawyer's stated intention.

Q: What rule controlled the analysis?

A: Disciplinary Rule 5-101(B), which barred accepting employment in pending litigation when the lawyer or a lawyer in his firm ought to be called as a witness, subject to exceptions the opinion found inapplicable here.

Background and rules framework

The opinion applied Disciplinary Rule 5-101(B) of the Tennessee Code of Professional Responsibility, the former lawyer-as-witness provision, together with the reasoning of Formal Ethics Opinion 81-F-10. The modern correlate is Model Rule 3.7 (lawyer as witness), noted here as a navigational cross-reference rather than a rule the opinion itself applied. The opinion's analysis turned on whether the lawyer or a lawyer in his firm "ought to be called as a witness" and on the absence of any applicable DR 5-101(B) exception.

Citations and references

Rules of Professional Conduct:

• DR 5-101(B) (Tennessee Code of Professional Responsibility), refusing employment when the lawyer or a lawyer in the firm ought to be a witness
• Model Rule 3.7 (lawyer as witness), modern correlate

Other opinions cited:

• Tennessee Formal Ethics Opinion 81-F-10, declining representation where the lawyer or his secretary would be a witness

See also

• Tennessee Op. 81-F-19: Lawyer-Conservator Suing a Bank as a Necessary Witness
• Ala. Op. 1991-19: Lawyer as a Witness Under Rule 3.7
• Ariz. Op. 85-04: Attorney as Client and Witness
• Colo. Op. 78: Disqualification of the Advocate-Witness

Source

• Landing page: https://www.tbpr.org/ethic_opinions/83-f-54

Original opinion text

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

83-F-54 - Lawyer Witness

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 83-F-54

Inquiry is made concerning the propriety of representing the primary beneficiary of a will, to uphold the validity of the will on the issue of testamentary capacity, after having witnessed the execution of the will, along with his secretary, and concurrently executing an affidavit that the testator was under no constraint or undue influence.

On March 9, 1983 the inquiring attorney witnessed the execution of a will by the testator. The will was prepared by the inquiring attorney's associate. The other attesting witness was the secretary of the inquiring attorney and the associate. Concurrently with the execution of the will, the inquiring attorney and secretary executed an affidavit attesting that the testator was under no constraint or undue influence.

Eight days later, on March 17, 1983, the will was admitted to probate in common form pursuant to the petition of the inquiring attorney's associate, who was nominated in the will and qualified as executor. The affidavit was used in probating the will.

The beneficiaries under the alleged will are the former wife of the decedent, two persons not related to decedent, and the decedent's minor daughter and only child.

The inquiring attorney states that he has no intention of offering his testimony in the will contest proceeding and further states that he has no opinion as to the competency of the decedent and does not recall his appearance, demeanor or other characteristics at the time of the execution of the will which is the only time he ever saw the decedent.

Obviously, the secretary will be a material witness in the will contest case on the issue of mental competence and testamentary capacity of the decedent. It is also obvious that the inquiring attorney ought to be a witness, even though his testimony may be inconclusive.

Disciplinary Rule 5-101(B) of the Code of Professional Responsibility provides:

A lawyer shall not accept employment in ... pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness ....

Tennessee Formal Ethics Opinion 81-F-10 held that a lawyer should decline representation if it is contemplated that either he or his secretary would appear as a witness.

It does not appear that any of the exceptions of DR 5-101(B) apply. Therefore, it is improper, in this instance, for the attorney to represent the primary beneficiary of the alleged will to uphold the validity of the will on the issue of testamentary capacity.

This 29th day of August, 1983.

ETHICS COMMITTEE:

Edwin C. Townsend

W. J. Flippin

Henry H. Hancock

APPROVED AND ADOPTED BY THE BOARD