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Ethics Opinion

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RI-26

July 19, 1989

SYLLABUS

    A lawyer may not act as advocate and as a witness in a case if the lawyer's testimony relates to a contested issue.

    A lawyer is prohibited from acting as advocate where a nonlawyer employee of the lawyer is a necessary witness or is testifying as to a contested issue inconsistent with that of the lawyer's client.

    References: MRPC 1.7(b)(2), 3.7(a)(1) and (b), 5.3(c); C-103.

TEXT

A lawyer acted as scrivener of a will for a testator without ever talking with the testator. A nonlawyer employee of the lawyer obtained from the testator the information necessary to draft the will. After preparation of the will by the lawyer, the nonlawyer employee read the contents of the will to the testator who indicated approval. The testator executed the will with the nonlawyer employee and a friend of the testator as witness.

The lawyer has now been requested to represent the proponent of the testator's will in a will contest in which the physical and mental capacity of the testator will be at issue, along with a question of the undue influence upon the testator. The nonlawyer employee of the lawyer will testify. The opponents of the will have subpoenaed the lawyer as a witness to testify in the case.

The question arising from the above facts is whether the lawyer may continue as trial lawyer.

MRPC 3.7 states:

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

      "(1) the testimony relates to an uncontested issue;

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

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

The fact that the lawyer never met the testator is evidence bearing on the validity of the will being contested. If the lawyer's testimony is sought with respect to the issue of testator capacity, it is not an uncontested issue and the continued advocacy by the lawyer would not be appropriate under MRPC 3.7.

Although MRPC 3.7 does not require withdrawal by a lawyer when an employee testifies, other rules may so require. If the lawyer's employee testifies, the lawyer's preparation of the will from information received from the employee and the lawyer's failure to assess the competence of the client raises questions concerning the lawyer's supervision of employees under MRPC 5.3 and malpractice. Under MRPC 1.7(b), a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's own interests. In RI-25 we found that a malpractice action against a lawyer was the type of personal interest that would in almost all circumstances hinder the lawyer's representation of a client. The implications of the employee's testimony raise significant doubt that the lawyer could "reasonably believe the representation will not be adversely affected" pursuant to MRPC 1.7(b)(1). Consent of the client is not sufficient to avoid these conflicts.

In conclusion, MRPC 1.7(b) prohibits a lawyer from undertaking or continuing representation of a client whose representation would be materially limited by the lawyer's own interest, or in which the lawyer could not reasonably believe the representation would not be adversely affected. A lawyer serving as advocate and witness in a matter in which the lawyer's own actions come under scrutiny would be such a prohibited representation.

 
     

 

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