OBA Ethics Counsel
Ethics Opinion No. 114
Adopted September 25, 1936
The Board is in receipt of the following inquiry:
"A party, now deceased, gave to his attorney the terms of a will he wished to make with instructions to draw it. The will was drawn, and executed in the office of the attorney who drew it. The attorney was one of the three subscribing witnesses thereto. The will has been offered for probate by the widow, who was devised a life estate, terminable upon her remarriage, and provided for remainder over to the 'heirs of the blood' of the testator. A child by a former marriage has filed a contest against the probate of the will. Query: May the attorney who drew the will, who was named executor therein, and was one of the three subscribing witnesses, with propriety, testify in relation to the preparation and execution of the will, and capacity of the testator, and at the same time have charge of the proceedings for probate and oppose the contest?"
The Board is of the opinion that the inquiry must be answered in the negative.
Rule 21 of the Rules of Professional Conduct provides as follows:
"When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client."
The Board is of the opinion that the exception stated in the last sentence of the rule refers to an exigency arising subsequent to the commencement of a trial, not readily foreseen, where it would constitute a hardship upon a client to deny the testimony of the member of the bar; but even then the member of the bar should entirely withdraw from the case if the circumstances will permit, upon the theory that no member of the bar having a just conception of his true and proper position will willingly unite the character of counsel and witness in the same case.
The language of the Supreme Court of Minnesota in Ferraro v. Taylor, 197 Minn. 5, 265 N.W. 829 is apposite:
"The practice of attorneys of furnishing from their own lips and on their own oaths the controlling testimony for their client is one not to be condoned by judicial silence. ... The good name and deservedly high standing of the ... bar requires that the practice be stopped, for nothing short of actual corruption can more surely discredit the profession."
In the case presented by the inquiry it appears that the member of the bar knew of the necessity or desirability of his testimony in advance of the trial.
In passing, it may be said that the facts presented in the inquiry indicate that members of the bar who draw wills should not act as subscribing witnesses. Especially is that true if the member of the bar is named in the will in any capacity.