Ethics Opinions

Opinion No. 74-2

Summary: If there is a substantial probability that trial counsel for the proponents of a contested will may decide during the trial to call his partner as a witness for the proponents of the will, trial counsel probably should withdraw from representation of the proponents prior to trial; but in the circumstances of this particular case the decision must be left to the trial lawyer to make in light of all of the facts and circumstances not known to him, including the factor of possible hardship to the clients if he withdraws from his representation of them.

Facts: Attorneys A and B are partners in the practice of law. Attorneys C and D are associates in the firm of A and B. In 1969 the firm prepared a will for T, which revoked a prior will executed in 1967. The 1969 will was executed in the presence of C, who was one of the three witnesses to the will. A had known T for many years prior to his death. The 1969 will has been presented for allowance by the Probate Court, and allowance is being contested by a child of T. The attorneys for the contestant have taken the deposition of A and have interrogated him at length about his knowledge of T and of the financial and family situation of T. Apparently the will is being contested on the grounds of undue influence allegedly exercised upon T by another child of T who is a proponent of the will and is named as executor in the will. A is attorney of record for the child named as executor. Trial in the Probate Court is imminent. A proposes to have his partner B try the case. A states that he does not intend to testify for the proponents of the will, but the attorneys for the contestant have stated that they intend to call A to testify as a witness (and perhaps C also), and have raised objections to having B represent the proponents at trial, calling attention to Disciplinary Rule DR 5-102(A).

Discussion: Disciplinary Rule DR 5-102 provides that:
(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4). (Emphasis added)
(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client. (Emphasis added)
Disciplinary Rule DR 5-101(B) provides that:
(B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
(1) If the testimony will relate solely to an uncontested matter.
(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case. (Emphasis added)

We will assume for purposes of discussion that when A and B originally accepted employment in the pending litigation: (1) they did not know that A ought to be called as a witness by either side; (2) it was not obvious to them that A ought to be called as a witness by either side; and (3) they expected that any testimony of C would relate solely to an uncontested matter, the formalities of execution of the will. Under those circumstances there would have been no apparent violation of DR 5-101(B) at the outset.

Now B knows that A, his partner, may be called as a witness "other than on behalf of his client." Therefore B now must make an informed judgment as to whether the testimony of A "is or may be prejudicial to his client." If his conclusion is in the negative on that point, B may continue his representation of the proponents without violation of DR 5-102(B); if his conclusion is to the contrary, he must withdraw.
On its face, DR 5-102(A) is not applicable to the situation in which B will be called as a witness by the contestant. However, based upon general experience in other will contest cases, we believe that B still may be confronted with a problem arising under DR 5-102(A). On the basis of the facts now known to him (not all of which are known to us), it may be "obvious" to him that at some point during the trial of the case "... a lawyer in his firm ought to be called on behalf of his client." As we understand the facts, A has extensive personal knowledge of the testator and may well have personal knowledge of the circumstances which induced the testator to execute a new will in 1969. Accordingly, B may find it in the best interests of the client to call A as a witness for the proponents in rebuttal of evidence presented by the contestants. B should not place himself in a position where his decision whether or not to call A as a witness may be influenced (or may appear to be influenced) either by the fact that he and A are partners or by apprehension that his calling A as a witness would result in a violation of the Disciplinary Rules.

If B sincerely does not intend to use A as a witness but suddenly decides to do so during the trial because of some unexpected development during the trial, presumably B then could continue his representation of the proponents without violation of DR 5-102(A), if he decides that his withdrawal in the middle of the trial "would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case."

Of course if B believes that the attorneys for the contestant intend to call A as a witness only as a device to remove B from trial of the case, B should not withdraw. See footnote 31 to Annotations of ABA DR 5-102.

Similarly, if A and B conclude that withdrawal of B as trial counsel would work a substantial hardship on the client because of the distinctive value of B or his firm as counsel in the particular case, B need not withdraw, even if B intends to call A as a witness. DR 5-101(B)(4).

Based upon our own inferences and assumptions as to the probable course of proceedings at trial of this case, and recognizing that we do not have a detailed knowledge of the facts, we think that there is a serious question whether B should withdraw as trial counsel for the proponents of the will prior to trial. See EC 5-9. "Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate." EC 5-10.

However, we recognize that the questions presented are not susceptible of easy resolution, and in the last analysis the decision must be left to the conscience of B.


Permission to publish granted by the Board of Delegates, 1974. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.
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