TX 1972

Can the lawyer who drafted a will, or the lawyer's secretary or relatives, serve as the attesting witnesses to that will?

Short answer: The Committee concluded that it is not unethical for the drafting attorney, the attorney's employees, or the attorney's relatives to serve as witnesses to a will the attorney prepared, so long as the witnesses are otherwise qualified; the opinion did not address disqualification of the attorney in later probate litigation.

Apply this to your situation

This page answers the general question as of 1972. Ezel answers yours: whether it's allowed on your facts, under the current Texas Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

The Committee was asked whether it is ethical for an attorney, the attorney's secretary, the attorney's relatives, or any combination of them to serve as witnesses on a will prepared by the attorney where the self-proving affidavit is omitted.

The Committee concluded that it is not unethical. It observed that an attorney who prepares a will may be subject to criticism, but not discipline, for not having used a self-proving affidavit. It then held that it is not unethical for the attorney who prepared the client's will, the attorney's employees, or the attorney's relatives to serve as witnesses to the will, so long as the witnesses are otherwise qualified. The Committee expressly stated that its conclusion was not to be construed to cover questions regarding disqualification of the attorney in litigation arising in connection with probate of the will.

Currency note

This opinion was issued in 1972, under the former Texas Canons and the Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The separate question the opinion reserved, disqualification of a lawyer who must testify, is now governed by Texas Rule 3.08 and ABA Model Rule 3.7. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: May the lawyer who drafted a will also witness it?

A: The Committee concluded it is not unethical for the drafting attorney to serve as a witness to the will, so long as he is otherwise qualified.

Q: May the lawyer's secretary or relatives witness the will?

A: Yes. The Committee concluded that the attorney's employees and relatives may serve as witnesses to a will the attorney prepared, so long as they are otherwise qualified.

Q: Does omitting the self-proving affidavit create an ethics problem?

A: The Committee said an attorney may be subject to criticism, but not discipline, for not having used a self-proving affidavit.

Q: Did the opinion address the lawyer being disqualified in a later will contest?

A: No. The Committee expressly said its conclusion did not cover questions of the attorney's disqualification in litigation arising in connection with probate of the will.

Background and rules framework

The opinion rests on former Texas Canons 24 and 32 and references DR 2-103 of the Code of Professional Responsibility then in effect. The separate disqualification question it reserved, for a lawyer who must testify, is now addressed by Texas Rule 3.08 and ABA Model Rule 3.7 (lawyer as witness).

Citations and references

Rules of Professional Conduct:

MR 3.7 (lawyer as witness), as the modern analog of the reserved disqualification question
Texas Canons 24 and 32; DR 2-103 (as cited in the opinion)

Source

Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-360/
Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_360.pdf

Original opinion text

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

QUESTION PRESENTED

Is it ethical for an attorney and/or his secretary and/or his relatives either or all to serve as witnesses on a will prepared by the attorney where the self-proving affidavit is omitted?

March 1972
Texas Canons 24 And 32; And DR2-103.

An attorney preparing a will may be subject to criticism, but not discipline for not having used a self-proving affidavit on the will. It is not unethical for an attorney who has prepared his client=s will and/or attorney's employees and/or the attorney's relatives to serve as witnesses on the will so long as the witnesses are otherwise qualified. This is not to be construed to cover questions regarding disqualification of an attorney in litigation arising in connection with the probate of the will.

Attorneys and/or their relatives and/or their employees may serve as witnesses to wills drafted by the attorney.

Tex. Comm. On Professional Ethics, Op. 360 (1972)

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